Search Results

By- Pavithra Rajesh, 5th Year Student at National University of Advanced Legal Studies (NUALS), Kochi Child Marriage can be described as a legal or customary union between two people one of whom is below the prescribed age of 18[1]. Despite existing domestic legislation for prohibition India still has a large number of child marriages. As per UNICEF India has one of the highest numbers of child-brides in the world. According to this report, 27% of the girls in India are married before they attain 18 years of age and 7% are married before attaining 15 years of age. To understand the causes it is important to analyze the existing framework in India as the enforcement of legislation plays a censorious role in the regulation of child marriage. The efforts to prevent child marriage dates back to the Child Marriage Restraint Act of 1929 (‘CMRA’) wherein the minimum age of marriage for girls was fixed at 14 and boys at 18. This Act was subsequently amended in 1949 increasing the minimum age of marriage of girls to 15 and it was last amended in 1978 increasing the minimum age of girls and boys to 18 and 21 respectively. However, the problem with the Act is that it imposed fines[2] to discourage children's marriage but did not straightaway declare it as void showcasing the mild commitment towards its abolition. The shortcomings of this Act led to the Prohibition of Child Marriage Act of 2006 (‘PCMA’). In comparison to CMRA, PCMA took a much more serious approach towards child marriage both in prevention as well as punishment. Some of the positive changes are that PCMA increased the punishment to two years of imprisonment and a fine up to INR 1,00,000[3] and appointment of Child Marriage Prohibition Officer. One of the positive steps taken by the judiciary’s approach towards child marriage was in the case of Independent Thought v. Union of India & Anr[4] wherein the Supreme Court observed that PCMA would override all the other personal laws. The Court thereby observed PCMA as a secular law than construing it from the point of view of personal law i.e. even if child marriage is acceptable in person they are still required to comply with PCMA. The Apex Court in this judgement notably also observed that child marriage should be void ab initio throughout the country. Another positive step made by the Government of India was the approval of Karnataka government amendments which declared all child marriages void ab initio under the PCMA. It is true the PCMA was a positive step towards eradicating child marriage however the PCMA is ineffective which was also reiterated by the Supreme Court[5]. With the introduction of this Act though it addressed the legal issue, it fails to address the existing societal and cultural norms in India. Section 3(2) and (3)[6] of PCMA is very problematic considering how most the marriages are forced by parents and in-laws and also permitting a girl to file a petition for void marriage only after two years of attaining majority will only add on to the additional barriers. Although Section 16 provides for the appointment of Child Marriage Prohibition officers[7] the Act is silent on punishment for neglect of duty[8], thereby not ensuring accountability. The lack of proactive enforcement agencies is also another reason. As per Section 19 of PCMA, it requires the state to makes rules for its implementation, but till now only 24 states have drafted it and 20 states have appointed Child Probation officers. This showcases the lack of implementation on the part of the state governments. There has been a lack of effort on the part of the judiciary to declare child marriages even when they have reported only a handful of cases are fully prosecuted. This is confirmed by the Delhi High Court in the case of the Association for Social Justice & Research v. Union of India[9] wherein a girl who as below 18 years was age was alleged to have been sold to child marriage by her 40years old father. The court in this case directed the girl to return to her parents and her husband was released on bail. Even though it was a matter of child marriage the courts did not take any measure to declare the marriage void. Also under the PCMA most of the cases are pending for disposal. The end of child marriage with the present regime seems to be impossible. Efforts must be taken to make law more stringent and proper rehabilitation of girls who are entrenched by the existing social norms. It requires short term goals with more effective ground-level steps to be undertaken with strict verification of the age of bride and groom. Social awareness initiatives and campaigns must be undertaken. One of the positive approaches pointed out by the Court in Smt Seema v. Ashwini Kumar[10] was compulsory registration of marriage which would be a way of tracking child marriages which was also recommended by the Committee on Elimination of Discrimination against women[11]. Efforts to harmonize PCMA with other laws on violation against women and children must be taken. The government must take measures protective actions to prevent child marriage to bring about a paradigm shift in the percentage. Independent thought case is only a step towards child marriage abolition more checks on authorities and implementation of the law are required for it to be obsolete. References [1] Article 1 of Convention on the Rights of the Child- Child means every human being below the age of eighteen years unless, under the law applicable to the child, the majority is attained earlier. [2] In 1949 fines slightly increased from one month to 3 months imprisonment and fine of an unspecified amount. Since then there were no changes in the punishment. [3] Section 9,10 of 11 the Prohibition of Child Marriage Act, 2006 [4] (2017) 10 SCC 800- para 19 and Lajja Devi v. State 2013 Cri LJ 3458 [5] Independent Thought v. Union of India & Anr (2017) 10 SCC 800- para 87 [6] Section 3(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer (3) The petition under this section may be filed at any time but before the child filing, the petition completes two years of attaining majority. [7] Under section 17 of Prohibition of Child Marriage Act Child Marriage Probation Officers is deemed as a public servant as per section 21 of IPC [8] Chapter V of POSCO, 2020 prescribes punishment for failure to report or record cases as well as false complaints or information under Section 21 and 22. [9] W.P.(CRL) 535 of 2010 [10] (2) 2008 1 SCC 180 [11] Committee on the Elimination of Discrimination against Women- Concluding observations on the combined fourth and fifth periodic reports of India para 39 (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By-Arunav Bhattacharjya,3rd year, BA LLB. (Hons.) student at National Law University and Judicial Academy Assam. RIGHT TO LIFE OF AN UNBORN CHILD The fetus of an unborn child posses equal and similar rights as the mother does under Article 14 of the Indian Constitution and is also ensured with the Right to life under Article 21.[1] The fetus is never anything other than a human from the time of conception. The beginning of human life is considered from the moment of fertilization, as at this point, the fertilized egg begins to develop into a separate and unique human being. The Right of a fetus includes the Right to water, food, seemly environment, breath, shelter, proper conditions of living, health care, reputation, personal security, etc. Therefore, the fetus in the womb of the surrogate mother has the right to breathe and to get adequate nutrition from the mother. There are two components of the Right to bodily integrity and liberty that are ‘choice’ and ‘consent.’ It is a medically proven fact that from the time of conception, life starts.[2] The Supreme Court of USA in Webster v. Reproduction Health Services[3] held that the life of a human being begins right from the very genesis of conception. In Davis v. Davis,[4] it was held that as a matter of law, human life begins right at the time of birth. In India, the practice of abortion is deemed illegal illustrated from Section 312 to 316 of the Indian Penal Code, 1860. The Hindu Succession Act, 1956, under Section 20 specifies that a child who at the time of death of intestate is in the womb and is later on born alive shall have the Right to inherit the intestate,[5] hence acknowledging an unborn child as a complete individual. Moreover, the fetus is also entitled to bring an action under torts.[6] A fetus, like any other individual, has the Right to sue, and the mother alone shall not be bestowed upon the Right to terminate the pregnancy when there is no grave danger or risk to her life as submitted by the panel of doctors.[7] Therefore, the state should not discriminate between children who have taken birth and children who are still in the womb of their mothers. Thus, the state has an obligation under Article 21 of the Constitution of India to not only protect the life of the unborn child from arbitrary termination of pregnancy, but also ensure equal protection of the law under Article 14. Various statutes in India has tried to define unborn child as a legal person by fiction. Life of a foetus does not commence from the stage of conception but when it is in embryonic stage and within fourteen days of the process of fertilization of the embryo. Medical professionals opine that that an unborn foetus starts to have impulsive growth and development right from the very beginning of conception. If life is purported to exist right from the beginning of conception, then the Right to life also commences from that stage. Article 21 of the Indian Constitution interprets the word ‘person’ that applies to all human beings and also includes the unborn progeny at every step of the gestation period of the mother. The Medical Termination of Pregnancy Act 1970 fails to provide regarding a woman’s Right to terminate a pregnancy beyond 20 weeks if there are possibilities of foetal abnormalities. The latest amendment to the Act extends the time cap to 24 weeks. Additionally, the Prevention of Abortion Act, 1971 as it currently based, also does not permit abortion solely on the request of a woman, but guidance from a medical practitioner is required before making a decision. One important reason for this said provision is to avert and bring down the instances of the muddle of female foeticide in the country. COMMODIFICATION OF WOMEN AND CHILDREN IN SURROGACY The practice of surrogacy as a way of attaining motherhood for couples having issues with infertility has gained disrepute among certain sections of society who advocate rights be given to the surrogate mother and prevent unjust discrimination in practice against the surrogate mother. The growth of commercial surrogacy around the world has raised with necessity a genuine cause of concern with regards to the scope and exploitation meted out in the market. The particular objection to commercial surrogacy is that it goes on to commodify the reproductive capacity of a woman and subsequently commodifies the child born out of such procedures.[8] A report from the Quebec Council for the Status of Women stated that reproductive technologies are risking mothers by breaking up the reproductive process, which leads to alienation of the mother from their own choice of reproductive capacity.[9] Furthermore, once a woman agrees to be a surrogate mother for the intending couple, she has to follow up on various terms and conditions as stipulated in the contractual agreement that has to be followed during the entire pregnancy process. After she gives birth to the child, she must give up all her rights over the child to the intending couple. This whole process of the stipulated arrangement is psychologically damaging for the mother.[10] Women’s rights activists challenge the assertion that contractual pregnancy, i.e, a surrogacy agreement, devalues the reproductive autonomy of a woman in the general course of nature. In their opinion, which is in line with Marxist perspective, when the market norms are applied to the ways women are exploited for their reproductive labour, they are reduced from the subject of consideration to objects of use.[11] The primary concern here is that “contractual pregnancy like surrogacy commodifies both the woman’s reproductive labour and the child in ways which undermines the autonomy and self-worth of a woman and the love parents owe to their foster children.” They asserts the fact that the state has a due obligation to protect the dignity, autonomy and the integrity of women who are in the surrogacy industry. Some strand of feminist views have also expressed concerns regarding the threat of the woman’s freedom, and in particular who are from poor background from commodification of their bodies.[12] This distinct view that surrogacy arrangements commodifies the reproductive capacities and autonomy of women is based on the premise that when labor resources are allowed for exchange through a contractual agreement, the resources are commodified in lieu of a valid consideration.[13] A crucial objection to the legality of a surrogacy contractual agreement is that the arrangement is nothing but a method of baby selling as the child becomes the object of consideration of the contractual agreement between the prospective couple and the surrogate mother. In the agreement, the surrogate mother is paid compensation for handling the baby over to the intended parents after completion of delivery of the child and rearing the child through the pregnancy period, undergoing various medical procedures. In the light of these dispute, it is truly asserted that there is an exchange of baby and parental rights in lieu money in such contractual agreements, which also commodifies the reproductive capacity of the surrogate mother. References [1] Emandi Ranga Rao, Right to life of Foetus – Verification of laws in the context of female Foeticide, INTERNATIONAL JOURNAL OF LAW, ISSN: 2455-2194 (Volume 3, Issue 2), pg. 33-39 [2] Panda Dr. Bhavani Prasad, “The Foetus: From PNDT Act 1994 to Pre-conception and PNDT Act to CEHAT 2003”, AIR 2004 JOURNAL SECTION, p. 257 [3] Webster v. Reproduction Health Services, 106L Ed. 2d 410 (1989); see also Hill v. Colorado, 530 U.S. 703 (2000) [4] Davis v. Davis (1989) 15 FLR 2097; see also, Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.747 (1986) [5] The Hindu Succession Act, 1956, Section 20 [6] Asween Kaur, Mother and the Fetus- A Socio-Legal Conflict, BHARATI LAW REVIEW, Jan-Mar 2016 [7] G.V Ramiah, Right to Conceive vis-a-vis Right to Birth, AIR 1996, JOURNAL SECTION P.136 [8] Elizabeth S. Anderson, ‘Is women Labor is commodity’ PHILOSOPHY AND PUBLIC AFFAIRS Vol 19 No.1, 1990. [9] Rakhi Ruparelia, ‘Giving away the ‘gift of life’: Surrogacy and the Canadian Assisted Human Reproduction Act’ CANADIAN JOURNAL OF FAMILY LAW, 11 (2007), at p 26. [10] Id. [11] M.V McLachlan and J.K Swales, ‘Babies Child Bearers and commodification’, HEALTH CARE ANALYSIS, 8:1 18,2000, [12] Id. [13] Id. (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By- Shouraseni Chakraborty, 4th Year Student at National University Of Study And Research In Law, Ranchi The issue of equality of women in the workplace has been in the hot waters ever since the introduction of the feminist movement in the 20th century. The Government plays a huge role in the shaping of the labour market, be it by the enforcement of the labour laws or protecting the workforce in times of retrenchment, disasters, or pandemics. But the policymakers should now consider another pertinent issue that affects the performance of women at the workplace - issuing gender-neutral laws concerning employment factors. The perception of women in the workplace has seen a sharp change. In the early twentieth century, women were perceived as the weaker sex, fragile both emotionally and socially than the men, which led to the gender-defined roles at the workplace. Even during the two world wars, the men were seen fighting the wars, and the women tended to the wounded as nurses. During the 1950s, with the emphasis of the ILO’s Convention No. 100 and 111, principles of equal pay for equal work and non-discrimination on several grounds including sex, concerning access to vocational training, access to employment, and terms and conditions of employment came into being respectively. But the devaluation of women’s work is still prevalent in society. The saddest part of this observation is assisted by the evidentiary research that both men and women hold subconscious biases affecting their decisions and value the work by men more than that of women. The difference is much more conversant in the employment sector, be it concerning the salaries, or the quality of work. The Matilda Effect, which spearheaded the conversation involving devaluation of women scientists’ work, as compared to their male counterparts, is very well seen in the workforce as a whole, especially in the Indian legal scenario. THE (UN)EQUAL PAY FOR WORK OF EQUAL VALUE India has taken various steps to implement these principles into the legislative framework. Women in India face an age-old socio-economic threat to their dignity and safety by virtue of the patriarchal set-up of the society. Hence, the Government has come up with legislative remedies to enhance and uplift the position of women in the workplace and ensure equal rights to women in employment contracts. One such enactment is the Equal Remuneration Act 1976 (‘ERA’) which concerns itself with the insurance of the equality in payment of men and women at the workplace. Recently, with the overhaul of the labour laws of the country, this legislation was repealed by the Code on Wages 2019 (‘Code’). Although this could have been an opportunity for the fulfillment of gaps concerning the pay gap in India, it indeed fails to do so. The Code has some positive sides to it. It moves from the binary concept of men and women, enhancing the need for equal pay to all genders, hence, extending the horizon to the benefit of the transgender people, which the Act failed to do. But, it still falls in certain aspects as it does not attempt annihilating the gender gap. For instance, it just reproduces the words of the Act in requiring the employers to pay equal wages for performing ‘the same work or work of similar nature.’[1] This phrase has had a history of being narrowly interpreted by the courts. The phrases ‘same work’ and ‘work of similar nature’ have been interpreted interchangeably by the courts. But the courts haven’t holistically or radically compared the two types of work which may differ in their essence, but require skills to be performed. For example, a female teacher in a school of specially-abled and a male engineer involved in mining activity is required to have enhanced skills for the performance of their respective jobs. Both these skills deserve decent pay considering the amount of responsibility, skill, and effort required. Yet, the imagination of the courts in terms of comparative paradox has only been limited to the ‘equal pay’ doctrine. INFERIORITY TO THE EQUAL REMUNERATION ACT The Code suffers from significant inferiority to the Act. The Supreme Court was at it’s feminist best in Nargesh Meerza when it held inter-alia that the employment factors of air-hostesses (for women) and air flight pursers (for men) differed vastly. It considered that the difference in the recruitment process and conditions of service were evidentiary enough to hold that these were separate classes of employees and could not be compared, even if they performed the same job. By virtue of the amendment, the Act prohibited discrimination between men and women in relation to conditions of service subsequent to employment such as promotions, training, or transfer. It took into consideration factors like recruitment, terms, conditions, and all other subsequent factors to employment. But the Code only centers around equal pay and is devoid of provisions requiring prevention of discrimination in the conditions of service, thus, proving to be a demotion from the position of protecting against discrimination as offered under the Act. SUGGESTIVE CONCLUSIONS FOR A FEMINIST FUTURE India has come a long way in recognising the equal rights of women and upholding their dignity in every phase of life. There has been a massive overhaul in the criminal laws, be it by broadening the definition of rape or by the addition of Section 498A against domestic violence. Similar steps have been taken up to ensure safety and security at the workplace by the introduction of measures like the Vishakha Guidelines and the Maternity Benefit Act. But a lot more needs to be done. To make the workplace more gender-neutral, the language used in the Code should be changed. For instance, the Equality Act of the UK should be taken into consideration, which uses the language ‘work of equal value’. The inequality in gender pay is directly attributable to the devaluation of the work of women in a patriarchal set-up. Where job valuation is based on segregation, women are always limited to low paying jobs. But, requiring equal pay for a work of equal value will be detrimental in removing the devaluation of work performed by women, especially in a patriarchal society. This will require them to be paid more for enhanced skill, experience, effort, and responsibility in the same amount as showcased by their male counterparts inter-industrially. An ‘equal valuation’ of work should be framed in such a way so that the position of women in female-dominated occupations can be compared systematically with that of men employed in discrete, male-dominated occupations with respect to the factors of education, training, and expertise. References [1] Section 4, The Equal Remuneration Act, 1976; Section 3, The Code on Wages, 2019. (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By- Tanvi Gupta, 3rd Year, B.Com LLB Student at UILS, Panjab University, Chandigarh “There can be no better measure of our governance than the way we treat our children, and no greater failing on our part than to permit them to be subjected to violence, abuse or exploitation.” -Jessica Lange INTRODUCTION The sudden outbreak of Coronavirus in 2019 in Wuhan, China spread across the nation in no time. While our nation is facing a hard time battling this mushrooming pandemic, it was declared nationwide lockdown and strict observance of social distancing. As an emerging global humanitarian crisis, the spread of COVID-19, and subsequent mitigation policies and measures, are expected to affect women, men, children differently. Women are often the primary responders to any crisis, and they play a pivotal role within the survival and resilience of families and communities. One of the backlashing impacts of stay home, stay safe order was a sudden surge in the cases of Domestic Violence. Violence against women and girls (VAWG) is a universal issue and has repercussions on the victim themselves, their families, and the society they belong to. However, this is not the first time that there has been an intense increase in the number of domestic violence cases during an epidemic. The number is probably going to hike as security, health, and money worries add to tensions and strains are underlined by constraining and circumscribed living conditions. A report issued by the WHO on 26 March 2020 stated that data from countries like China, United Kingdom, United State, and other countries are showing the increased incidents of domestic violence during the COVID -19 outbreak. Violence caused a deep impact on the health of victims such as physical injuries, mental, sexual, and reproductive health problems, including sexually transmitted infections, HIV, and unplanned pregnancies. EMERGENCIES EXACERBATE DOMESTIC VIOLENCE The term "domestic violence" refers to intimate partners' violence; it also encompasses child and elder abuse by any member of the household. According to NCW from 27 Feb to 22 March Commission received 396 complaints of crimes against women from across the country but During the first phase of lockdown (23 march to 16th April) NCW registered 587 domestic violence complaints which are almost the double of the normal incidents. Mounting statistics suggest the VAWG is acting like an opportunistic move, burgeoning the conditions created by the pandemic. On the very initial stage of Lockdown UN Secretary-General called for "ceasefire" to address the "Horrifying global surge in domestic violence". Hence, as a measure of foresightedness, we must first try and understand why domestic violence continues to be a menace and then perceive solutions that suit the Indian context: Economic stress and social isolation: From sudden fall in income to losing one’s job are likely to increase the perpetration of violence by abusers. Economic Stress and Joblessness are closely associated with a sense of powerlessness as per 'Masculinity' Norms. Even during marriages, Indian parents often look at the Economic Status of a Man before giving away their daughter. Normalization of such norms leads to a predisposition towards feeling 'loss of power' whenever the financial crisis set in. Psychopathology and alcohol consumption: This lockdown not only resulted in the ruckus of domestic violence but also gave growth to mental illness and stress. Due to strict norms and unavailability of liquor, there has been intense aggression among male partners. Patriarchal Mindset: “It’s the woman’s job to cook, clean, wash. It’s the man’s job to earn. So albeit we seem to possess progressed in paying hypocrisy to be 'liberal', the true test is in the living. And this confinement is throwing up the 'real' mindsets of partners." There are many dimensions to domestic violence, all of which stem from the exercise of patriarchal power. LAWS PERTAINING TO DOMESTIC VIOLENCE IN INDIA Under the Indian Constitution, it is the duty of the State under Article 47 of the Constitution of India, to boost the level of nutrition, the standard of living and to improve the public health of the people. State also has to provide safety and security for the citizens. However, domestic violence in India is a forgotten agenda amidst the lockdown. The government of India has made various laws to curb domestic violence. There are various provisions under the Indian Constitution such as A- 15(3), 39, 42, 51, and 243, etc. Also, certain civil laws such as The Hindu Marriage Act,1995, The Indian Divorce Act 1869, The Dissolution of Marriage Act, 1930, etc which provides the remedy to women to step out of Abusive marriage. There are numerous provisions in IPC for offences like rape, dowry death, detaining married women with criminal intent and outraging women's modesty, etc. Furthermore, there is a separate act on Domestic Violence. Domestic Violence Act, 2005 has widened the definition, it includes an act or conduct which harms or endangers the health, safety, and life and wellbeing mentally or physically. INITIATIVE TAKEN BY THE GOVT. TO CURB DOMESTIC VIOLENCE The Protection of Women from Domestic Violence Act, 2005 lays down that the government should adhere to the strategies that have not been adhered to. In India the NCW was set up as statutory body in January 1992 under the National Commission for Women Act, 1990 the Commission has the vision “The Indian Woman, secure in her home and out of doors, fully empowered to access all her rights and entitlements, with an opportunity to contribute equally in altogether walks of life”. The Commission has the core unit i.e. complaint and counseling cell which entertained all complaints submitted to it either orally, written or Suo motu under Section 10 of the National Commission for Women Act. During the lockdown, the amount of receiving the complaints increase then commission launched a WhatsApp number 7217735372 on 10th April 2020 to register the complaints, as well as commission, appealed to women to approach the nearest police headquarters or State Commission for ladies. Between the period of April-May, 727 complaints are received on the WhatsApp number. Commission also has the varied helplines number like JAGORI-(011) 26692700, Sakshi - violence intervention centre-0124) 2562336/ 5018873 despite these there are women helplines numbers are also available such as women helpline ( All India women in Distress)-1091, Women Helpline Domestic Abuse-181 similarly the various State Commissions also have their helpline numbers and women helpline numbers. Within the various states the Government has set up in every District Police headquarters Crime Against Women Cell (CAW) was created and women suffering from domestic violence can approach this helpdesk in police headquarters. There are arrangements for the fast transportation of the officers to respond to complaints of domestic abuse and rescue them to the shelter with immediate effect. FOR A ROAD TO A BETTER FUTURE VAWG shouldn’t only be reported to authorities through helplines but there should be proper online counseling sessions. The sessions will help in finding the root cause and might save the family from a split. The government should aim at creating more job opportunities because it is found half of the ladies fail to share violence against them due to the uncertainty of income and shelter at a later stage. More informal spaces should be designed like a grocery shop, chemist to report VAWG so that it can be reported without alerting the perpetrators of abuse. During this lockdown, families should utilize this time in building bonds and fun activities. National Commission for Women should increase the awareness of helpline numbers and WhatsApp numbers on which the women can file complaints. Citizens must be sensitive towards intimate partner violence and the neighbors and bystanders should not ignore it but rather intervene in the situation. When people are unable to contact for help, the government should initiate an alternative same as France and Spain by introducing a codeword. CONCLUSION The current crisis is an all hands-on deck sort of situation that's getting to require maximum coordination and sincere efforts by all authorities. As more and more issues come to the fore, the burden on these authorities is only going to increase. Resultantly, it is also important to mobilize all grass root level organizations working across India to spot victims of abuse, ensure that the information reaches the authorities and thereafter coordinate with them to provide accelerated relief to the sufferers. Adding thereto, witnessing a mother do home chores, getting beaten by one's father or any member in ascendance, only cements the conception that ladies are impuissant and credulous. This conception needs to be uprooted, and all evils born out of this conception get uprooted additionally. Understanding the trigger factors of an abuser and placing checks upon them is feasible with opportune regime support and funding. Overall, humanity should never bow right down to accommodate the preservation of humanity. (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By- Rohit Arya, 4th Year B.A. L.LB Student at Amity Law School, Delhi INTRODUCTION For the very first time in 1971, India legalized abortion. Prior to that, abortion was criminalized under the Indian Penal Code, 1860 calling it ‘causing of intentional miscarriage.’ However, with the enactment of The Medical Termination of Pregnancy (MTP) Act, 1971, passed by Parliament in 1972, the medical termination no longer remained a criminalized act. The MTP Act, 1971 devised for abortion and legalized medical termination for up to 20 weeks of pregnancy and try to protect women's right to life through its provisions. Where the length of the pregnancy has extended up to 12 weeks gestation period, on the counsel of one ‘Registered Medical Practitioner,’ pregnancy can be terminated. Where the length pregnancy goes beyond 12 weeks but within 20 weeks of the gestation period, on the medical opinion of two such ‘Registered Medical Practitioner’ in good faith, pregnancy can be terminated only in the following grounds:- That continuation of pregnancy risks the life of the pregnant lady or cause injury either to her corporeal or cerebral well-being, or That there exists a peril to the child if born, can be firmly disabled due to corporeal, or cerebral abnormalities, That the cause of gestation is rape (believed to have a grave injury on the psychological well-being), That the cause of gestation is defective in any device or method used by any married woman, or her husband so as to restrict the number of offspring (such undesirable pregnancy supposed to have a grave injury on the psychological fitness). Note: The pregnancy has to be terminated only by a Registered Medical Practitioner and if the pregnancy has been terminated by a non-Registered Medical Practitioner, the person is guilty of the offense punishable under the Code. The MTP Act, 1971, allows the pregnant women to terminate her pregnancy beyond 20 weeks, if it is necessary to save her life, provided that the opinion of the medical practitioner is in good faith. The Court constitutes a Medical Board (an expert committee of medical professionals that produce a report which specifies whether pregnancy shall be terminated or not) in all the cases of terminating pregnancy beyond 20 weeks. THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) BILL, 2020 This (Amendment) Bill was presented in Lok Sabha on March 2, 2020, and was passed on 17, March 2020. Proposed Features of the (Amendment) Bill Introduced the term, “Termination of pregnancy," where a pregnancy can be terminated by using medical, or surgical ways and means. Replaced the term, “married woman or her husband” with “woman or her partner” where the cause of pregnancy is due to defectiveness in any device or technique used by any woman or her partner so as to restrict the number of offspring (such undesirable pregnancy supposed to have serious damage on the psychological healthiness). The (Amended) Bill increases the upper gestation limit to 24 weeks. The pregnancy up to 20 weeks can be terminated on the opinion of one Registered Medical Practitioner. The pregnancy between 20 weeks to 24 weeks can be terminated on the opinion of two Registered Medical Practitioners. The pregnancy up to 24 weeks can be terminated only for special categories of vulnerable women which include; rape victims, victims of incest, and other handicapped women or minors. Note: However, the upper gestation limit will not apply in the cases of substantial fetal abnormalities, under section 3(2B). It is indispensable for every state government to form a Medical Board, comprising of members, under section 3(2D):- A gynecologist, a medical practitioner who specializes in women's reproductive health. A pediatrician, a medical practitioner who specializes in children and their diseases. A radiologist or sonologist, a medical practitioner who specializes in diagnosing, treating injuries and diseases using medical imaging radiology. Or any other number of members, as may be notified by the state government. Under the (Amendment) Bill, Each and every Registered Medical Practitioner has to keep confidential the identity and other information of a pregnant woman who has undergone an abortion, under section 4(5A)(1). Note: The information and identity of the women can be disclosed to a person authorized by any law. Any person who discloses the identity and other information to any other person not authorized by any law for the time being in force will be punishable, under section 4(5A)(2). NEED FOR THE (AMENDMENT) BILL Law is of dynamic nature, which means with the change in society law has to be changed along with it. The existing Medical Termination of Pregnancy Act, 1971, has not kept pace with the changing times, requirements, and developments in medical science. India is changing swiftly and the lives of the individuals are no longer similar to what was back then in the1970s which led to bringing an amendment to the 49 years old Law by the way of, The Medical Termination of Pregnancy (Amendment) Bill, 2020. For the undergoing abortion over 20 weeks, women have to face the cumbersome legal recourse. There exists a need to expand this gestational period beyond 20 weeks as it is a health issue and not a legal issue. Whereas, maximum of the pleas seek termination of pregnancy due to fetal anomalies that are detected late, or the pregnant individual falls under the case of sexual assault and rape; above all minors, where the medial practitioners are not ready to perform abortions, irrespective of gestational period. The (Amendment) Bill will surely ease the burden on Courts, assured confidentiality to the identity of mothers (where social stigma relating to abortion can cause chaos in the life of aborting individual). It aims, to expand women’s access to safe and legal medical termination of pregnancy services on social and humanitarian grounds as abortion is one of the chief aspects of the reproductive health of women. Questions related to the disability of the fetus, the reproductive rights of the woman, and disability rights. These issues are complex and cannot be addressed based on Medical Board’s findings whether to continue or terminate the pregnancy, which turns out to be the decisive factor for the Court, rather than considering the woman’s reproductive rights. Therefore, Whether the Court’s decision shall solely be based on Medical Board Reports? If the reproductive rights of the woman are to be protected, Shouldn’t the right to terminate her pregnancy shall be her decision? No doubt, the Medical Board may determine the physical well-being, but, The Board cannot ascertain the mental well-being and conditions of the woman. Thus, the right to terminate a pregnancy cannot be denied merely because the gestation period is beyond 20 weeks. CASE LAWS Geeta Devi v. State of Himachal Pradesh, Civil Writ Petition No. 2250 of 2017. The High Court of Himachal Pradesh allowed the abortion of a 32 week developed fetus. The petitioner was 19 years old. The Court approached the Medical Board which was of the opinion that the development of the fetus in her womb would cause peril to the life of the petitioner along with the life of an infant. Also, vaginal delivery would be perilous. The Court was of the view that there were major difficulties in the continuation of pregnancy, as reported by the medical board. Perhaps, it will wreak havoc in the Mental as well as the physical well-being of the petitioner and the abortion was the safest option. Thus, the continuation of pregnancy jeopardizes the life of the petitioner and based on expert opinion that the fetus might not survive for long. The Court directions were given to the petitioner to terminate the pregnancy. Anusha Ravindra v. Union of India, Writ Petition (Civil) No. 934/2017. In the above case, the Court refused:- The petitioner’s request for terminating pregnancy which was beyond 20 weeks, and To amend the given Section 3 of the Medical Termination of Pregnancy Act, 1971. However, a notice was issued to the Central Government to amend the Medical Termination of Pregnancy Act, 1971 in force. The petition seeks for the composition of a committee that should frame suitable guiding principles for an exigent and harmless way of terminating pregnancy under cautious medical facilities and to set up a permanent mechanism for abortion beyond 20 weeks in the cases of exception. Chiefly rape survivors, women with disabilities, Victims of incest. Rape victim, 10-yr-old: denied to terminate the pregnancy, 2017. In this case, the victim is a 10-year-old rape survivor who had been raped frequently by her maternal uncle due to which she got pregnant. At the time case reached Chandigarh court for termination of pregnancy, the minor was already 26 weeks pregnant and the court terminating her pregnancy as the law does allow abortion beyond 20 weeks. Despite the Medical team was of the opinion that vaginal delivery is perilous to the life of both the victim and the infant as the pressure while delivering would not be supported by her pelvic bones. In a dilemma, the court was referred to the Supreme Court. In the end, the victim had a Cesarean- section delivery, and the minor was told that she had a kidney stone operation. The infant was given for adoption. The Supreme Court ordered the Chandigarh administration to award compensation to the rape victim of rupees ten lac out of which one lac has to be paid straightaway to the victim, and her family for medical expenses and the remaining nine lac has to be kept as a fixed deposit in the name of the victim, for her future needs. Also, the victim and her family’s identity to be kept confidential, and if not, it shall be taken as a contempt of court. CONCLUSION The proposed Medical Termination of Pregnancy (Amendment) Bill, 2020 ensures the safety and welfare of the women as it is pondered upon there empowerment. It aims to provide considerable reproductive rights to women which will prove to be beneficial, but, there is a long road ahead for liberal terminations of pregnancy laws. It is the job of the government to make sure that all standards and procedures in clinical practice are followed in health care institutions with advanced technology to ease the termination of pregnancy across the country. Also, the termination of pregnancy shall be decided on a human rights basis. The recommended increase in the gestation period from 20 weeks to 24 weeks can ensure justice for women who need to undergo an abortion without the court’s intervention. Indeed, it is a significant step and would have assisted a lot of women who were left with no other option but, to approach the court, and went through all that pain to get there pregnancy terminated which were beyond the gestation period of 20 weeks. So, the changes made by the (Amendment) Bill, which is yet to be passed by the upper house will safeguard such women from- the burden to visit court, delay in pregnancy termination, mental agony, and enormous expenditure. The Supreme Court acknowledged the women’s reproductive rights, and the decision to terminate the pregnancy as their right to personal liberty. Again, rules and regulations, for the Medical Board are yet to be passed by the Parliament to protect pregnant women from superfluous postponements which put the pregnancy at a perilous stage. It is due to the current Medical Termination of Pregnancy Act, 1971 that prompts the forlorn women to opt for unsafe pregnancy termination when they came to know about a fetal abnormality beyond the 20th week, that too from an inexperienced medical authority. The reason illegal abortions constitute to be the third foremost origin of maternal death in India. The lesser the intervention of courts, the less unsafe abortions become the cause of maternal deaths in India. “Needless to say, Law cannot be interpreted in such a manner that is unsuited to life.” The gender equality movement in India has come a long way, Indian women are today enjoying at par with men in various sectors and spheres. Yet, no one discusses pregnancy termination, or want to acknowledge women’s freedom over her body. Indian society is of the opinion that women’s wallowing in sex before marriage is unchaste or immoral. All in all, which prompts women to alternative methods of terminating the pregnancy. Therefore, a step ahead would be acknowledging every woman’s right to abortion, and thus, spread awareness on the necessity for a harmless and medically safe atmosphere for the termination of pregnancy. (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By- Beejal Ahuja & Shelal Lodhi Rajput, Students at New Law College, Bhartiya Vidyapeeth University, Pune & Symbiosis Law School, Pune (respectively) "There is a reason fairy tales most commonly end with happy endings. It is because nobody wants to face the realization of human depravity.” - Asa Don Brown INTRODUCTION There are numerous and multidimensional issues related to the protection of women and children in the present time, but the most prominent that even exists today is the issue of human trafficking, and under that also, these two are the vulnerable groups of society who suffer the most. If taking the situation of India, particularly, the status of women is subjected to many changes in the past time, the rise of feminism, and many more things on the same lines. But still, the prominent problem that exists on the global level is trafficking of women and children, which is one of the most despicable forms of violation of the fundamental right of any person that is guaranteed by the supreme law of the land, the same is also a clear violation of the most sacrosanct right that we have, i.e., human rights. FUNDAMENTAL RIGHTS AND TRAFFICKING The tyranny of child and women trafficking and the prime objective behind the trafficking of them are so heinous, gruesome. The gross violation of their right to life, along with the violation of many conventions of the UN that was ratified by many states. The issue of trafficking is not only limited to a particular country; it is a global problem in a global village; it is most prevalent in the poorer and underdeveloped countries. The trafficking is the result of dynamic forms of discriminations on multidimensional grounds that is explicitly prohibited in International laws through various conventions and international framework. The violence against women and children is multifaceted but the most common amongst them is the sexual harassment, and the business of prostitution all over the world, India, or any other country is not untouched to it. LAWS TO COMBAT HUMAN TRAFFICKING IN INDIA The time when the first issue came in the limelight at the global level was in 1949 when the UN adopted a convention for the suppression of the trafficking in Persons and the Exploitation of prostitution, which was the only convention that is mainly focusing it for many years. The watershed in International level on the issues came by the adoption of Palermo Protocol as it defined trafficking in a literal sense with a wider perspective as a matter of International law. India also signed the protocol after 2 years of its adoption on December 2, 2002, and ratified the same in 9 years back on May 13, 2011. In the Indian context, we have some sui generis law for the prevention of trafficking- 1. Indian Penal Code Section 366A[1]- If anyone induces a minor girl, i.e., under the age of eighteen years to go to a particular place for having forced sexual intercourse with another person shall be punished. Section 366B[2] - If anyone imports a girl under twenty years of age, to force or seduce her to sexual intercourse with another person shall be punished. Section 374[3] - If anyone forces or compels anyone unlawfully to labour without his/her will, shall be punished. 2. Constitution of India Though trafficking violates various fundamental rights (Part III)[4] of a person being trafficked. Right to life, right to social security, right to personal liberty, right to freedom of movement, association, or right to have a proper and standard living condition, etc., all these rights of the ones being trafficked are violated miserably. But here the two articles are explicitly dealing with trafficking. Article 23[5] - This gives protection to humans and beggars against Exploitation and trafficking and also punishes the same under the law. Article 24[6] - This prohibits children of under fourteen years from working in factories, mines, or any such hazardous employment. 3. Immoral Traffic (Prevention) Act[7] This is the primary legislation that protects women and girls from being sexually exploited. This does not define trafficking but has specified the offences punishable related to trafficking. The acts amounting to offences under this act are- Earning from prostitution. Unlawfully detaining a person in the area of prostitution. Forcing someone for prostitution. Opening of brothels, etc. and many such offences. 4. Juvenile Justice (Care and Protection of Children) Act[8] This is specifically meant for the protection of children. It punishes trafficking and also provides care and protection to the victim. 5. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill[9] The latest instrumentality that is under process for adoption of the new law in India is The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018. CHALLENGES FOR THE VICTIMS The violence is not only physical, sexual assault (like rape), but it doesn't stop here itself the other things that may also come under the same ambit, and very few people are aware about it is – stalking, voyeurism, etc. The offences against children that come in a consequential way after the trafficking is child labour, Exploitation, and most important curtailment on their freedoms. The problem of trafficking doesn't restrict itself to only the commitment of offence or crime of trafficking but then it leads to many more social evil problems that are still existent with us, the trafficking acts as a connecting dot and invites many other crimes also, like: Child Labour Bonded Labour Child Labour Kidnapping Abduction Prostitution The aforementioned are just some prominent offences that can easily be traced out in linkage with trafficking. FACTORS LEADING TO TRAFFICKING There are a plethora of reasons behind this, which are listed below: Poverty and the lower socio-economic conditions: The dynamic reason for many crimes. Orthodox and Patriarchal structure of Indian society (Traditions, i.e., Child Marriage) The non-efficiency and apathetic attitude of law enforcement agencies. Lacunas in the criminal justice system, evident from a conviction in crimes in issue relating to the trafficking cases. Objectification of women by social media and Internet Pornography. Sex Tourism and Migration. Discrimination amongst men and women. There are ample of many more reasons apart from the reasons above. REMEDIES According to NCRB (National Crime Record Bureau), the highest incidence of children and women being trafficked were observed from the two big cities out of which one is the economic capital of our country, i.e., Mumbai and the other city is Kolkata. The way forward to curb this issue is not just only coming up with new legislation every time, along with that, we also need to implement them strictly and end the problem from its root cause. According to a Human Rights Commission, the main focus areas of the traffickers are debt bondage, involuntary servitude, or forced labour. Through these, they easily take and sell the children and women working there because they are in need of money, living in poor conditions, not having proper food, and much more. Here the poverty and lack of awareness go hand in hand, which results in the Exploitation of the children and their families too. To tackle these hardships, they often go for this easy way. The government needs to look into those sectors (the marginalized and poor ones) and fill that communication gap to make them aware of their rights and laws for trafficking. Because for such people, trafficking is like a lucrative trade to earn money and profit for many purposes. Why not such cases and traffickers are being taken seriously, or why not the media highlights such people and make aware to the public about the harm, instead of spreading false rumours. The implementation of the laws should be such that there is an assured guarantee to the victims and others that there will not be any repetition of such an act. All India survey/raids should be done by the crime bureau to find out the trafficking areas, brothels, traffickers, also areas or factories where bonded labour exists, and strict actions should be taken against the same. CONCLUSION The trafficking is such a global evil that it does not just violate human and fundamental rights but many others if we dig out the whole vicious cycle of trafficking and life thereafter. If we talk in Indian context, the issues in the protection of the women and children are ample due to many lacunas in every aspect from society to the legislative body. To prevent this issue, there is a need for a combined call from all sides to end these heinous crimes and to safeguard the women and children from trafficking and violation of their gross human rights by proper awareness and implementation of various laws. To end or curb out the issues in the protection of women and children, it's quite apt said by Arthur Ashe "Start where you are. Use what you have. Do what you can" this is the prime thing that can completely make a watershed in these issues as when the public decides to do something no other force can stop them for a good cause. References [1] The Indian Penal Code, 1860, Section 366A. [2] The Indian Penal Code, 1860, Section 366B. [3] The Indian Penal Code, 1860, Section 374.. [4] The Constitution of India, 1950, Part III, Fundamental Rights, Article 12-35. [5] The Constitution of India, 1950, Article 23. [6] The Constitution of India, 1950, Article 24. [7] Immoral Traffic (Prevention) Act, 1956. [8] Juvenile Justice (Care and Protection of Children) Act, 2000. [9] The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By - Abid Faheem, Research Scholar at Jawaharlal Nehru University, New Delhi. Child violence in all its forms is a fundamental human rights violation and a serious issue across the globe, affecting the millions of children's life. Children who have been severely abused or neglected experience, both short term and long-term consequences that hampers their overall development. The experience of a violent/abusive environment creates a culture of low self-esteem and depression, which leads to self-harm and risky behaviours. The adverse impact also carries huge economic and social costs. Over the decades, the harmful effects of child violence on children have been getting recognised; however, the subject is still masked in the wall of silence. There are various reasons to it, such as difficult to define, lack of clarity on measuring the breadth and depth of violence due to its multiple forms/nature, socio-cultural sanctions to certain forms of violence, and so on. Violence happens everywhere; there is no safe place for a child, not even his/her home. Each year, millions of people lose their lives as a result of self-inflicted, interpersonal, or collective violence, and many more suffer non-fatal injuries. Most form of violence is almost invisible because the human cost in grief and pain cannot be calculated. The invisible form is so because it is deeply rooted in the social, cultural, and economic structure of the society (Krug, Mercy, Dahlberg, Zwi, & Lozano, 2002). There is no universal definition of child violence due to the complexity of the subject that can be applied universally across the globe. The definition or nature of the phenomenon is greatly influenced by the economic, political, legal, societal, and cultural context. Therefore, this phenomenon must be defined and explained within the constructs of its socio-cultural environments (Finkelhor & Korbin, 1988; Segal, 1992). According to WHO, child violence is be defined as "all forms of physical and/or emotional ill-treatment, sexual abuse, neglect or negligent treatment or commercial or other exploitation, resulting in actual or potential harm to the child's health, survival, development or dignity in the context of a relationship of responsibility, trust or power" (World Health Organisation, 1999). In other words, it is a state of physical, sexual, emotional, and commercial exploitation of a person below the age of 18 years, and is an outcome of a set of inter-related familial, social, psychological, and economic factors (Kacker, Varadan, & Kumar, 2007). It is a well-established fact among the expert that violence during childhood adversely affects the child; however, the same recognition is very limited, and the issue of child violence still couldn't get much attention. The one way to erode its social acceptance and to unveil the adverse impact is to present the evidence in the form of reliable data to the audience about the severity of the issue. Therefore, the author would like to present available data to show how severe the issue is, that impact the growth and development of a child. According to WHO, an estimated 31000 deaths were attributed to homicide among children less than 15 years of age, and over half of all children aged 2 to 17 – are estimated to have experienced emotional, physical, and/or sexual violence. The risk of fatal abuse is two to three times higher in low-income and middle-income countries than it is in high-income countries (World Health Organisation, 2006). The crisis of sexual violence is particularly more acute. The World Health Organization has estimated that 150 million girls and 73 million boys below the age of 18 have experienced sexual violence involving physical contact (ibid). Coming to the Indian context, as per the study of the Ministry of Women and Child Development of India (2007), two out of every three children experience physical abuse, 53.22% of children experience one or more kinds of sexual abuse, and every second child experience emotional abuse. The study also reveals that it is young children between 5-12 year age groups who are at a higher risk of abuse and exploitation (Kacker et al., 2007). In a study of 51 children suspected to be victims of child abuse referred to Childline in Chandigarh revealed that physical abuse was the most common (84%), followed by emotional abuse (76%) and neglect (47%). Girls were significantly more affected than boys, and neglect was more common in the younger age-group, whereas physical and emotional abuse increased with age (Singhi, Saini, & Malhi, 2013). The prevalence rate of child violence across the globe is very high. According to UNICEF worldwide, 3 in 4 children aged 2-4 violent experience discipline such as physical punishment and/or psychological aggression by their caregivers, and around 6 in 10 children are punished by physical means. In the age group of 2-4 years, 75% of children experience some form of violence, while 63% of children experience physical punishment, and 67% of children experience psychological aggression. In the school environment, worldwide, more than 1 in 3 students between the ages of 13-15 years, experience bullying (UNICEF, 2017). In India, according to a study conducted by MWCD on child abuse in 13 states in India documented that 68.99% of children experienced physical abuse, out of which most of the respondents (54.68%) were boys. The similar study documents that 59% of children from the family environment not going to schools experienced physical abuse within the family; from school-going children, an overwhelming majority of 65.01% of children reported being beaten at school that means two out of three children are victims of corporal punishment; from child care institutions 56.37% children were subjected to physical abuse by staff members of the institutions; from the working children 58.79% children reported physical abuse, and physical abuse among street children either by family members or by others or both was 66.8% across the states. In the case of sexual violence, 53.22% reported having faced one or more forms of sexual abuse; among them, 52.94% were boys and 47.06% girls. In the case of emotional abuse, the study documented that every second child perceives himself or herself as being emotionally abused. In short, two out of every three children experience physical abuse, 53.22% of children experience sexual abuse, and every second child experiences emotional abuse. The study also reveals that it is young children between 5- 12 years group who are at higher risk of abuse and exploitation (Kacker et al., 2007). CONCLUSION The data presented above about the high prevalence of child violence and its impact reveals the severity of the issue. It should be noted that the above-presented data may not be actual because most of the cases are not reported or recognised. As child violence is a fundamental violation of human rights, every state must intervene and take steps to protect children from all kind of violence, the rights that are provided under article 19 of the United Nations Convention on the Rights of the Child (UNCRC), an international agreement of which most countries including India are signatories. There is also a need to break the silence around the issue by engaging more and more people in the discussions. Amidst this global pandemic, which is affecting everyone's life, none is more important or urgent than the overall protection of children. References Finkelhor, D., & Korbin, J. (1988). Child Abuse as an International Issue. Child Abuse & Neglect, 12, 3–23. Kacker, L., Varadan, S., & Kumar, P. (2007). Study on Child Abuse : INDIA 2007. In Ministry of Women and Child Development, Government of India. Krug, E. G., Mercy, J. A., Dahlberg, L. L., Zwi, A. B., & Lozano, R. (2002). The World Report on Violence and Health. In World Health Organization. Geneva. Segal, U. A. (1992). Child Abuse in India : An Empirical Report On Perceptions. Child Abuse & Neglect, 16, 887–908. Singhi, P., Saini, A. G., & Malhi, P. (2013). Child Maltreatment in India. Paediatrics and International Child Health, 33(4), 292–300. https://doi.org/10.1179/2046905513Y.0000000099 UNICEF. (2017). A Familiar Face: Violence in the Lives of Children and Adolescents. New York. World Health Organisation. (1999). Report of the Consultation on Child Abuse Prevention. Geneva. World Health Organisation. (2006). Preventing Child Maltreatment : A Guide to Taking Action and Generating Evidence. In World Health Organization. https://doi.org/10.4135/9781412950664.n54 (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By- Divyanshi Saxena, 2nd Year B.A. LL.B Student at University Five Year Law College, University of Rajasthan, Jaipur INTRODUCTION AND WORLDWIDE PERSPECTIVE The word 'surrogate' has been derived from the Latin word 'surrogatus' which means 'substitute'. Accordingly, being a surrogate means being a substitute. Black's Law Dictionary[1] defines surrogacy as the process of carrying and delivering a child on behalf of the other woman. Surrogacy can be bifurcated differently depending upon the basis of classification. The type of surrogacy which has been the point of debate in legal bailiwick is commercial surrogacy. When surrogacy is bifurcated on the basis of consideration given to the surrogate mother, we have altruistic surrogacy and commercial surrogacy. The former refers to the surrogacy in which only necessary expenses are given to the surrogate mother while the latter refers to the surrogacy where consideration over and above necessary expenses is given. Surrogacy laws vary from country to country. The countries which completely prohibit surrogacy include France, Germany, Sweden, Iceland, Italy, and Spain. Some countries like Kenya, Malaysia, and Nigeria have neither prohibited nor regulated surrogacy. Countries like India, United Kingdom, Denmark, South Africa, Australia, Canada, and Greece allow only for altruistic surrogacy while countries like Ukraine, Thailand, and Russia have legalized surrogacy. Thus, it is evident that there is no uniform law across the world in regard to surrogacy. INDIAN PERSPECTIVE The Hon'ble Supreme Court in the case of Baby Manaji Yamanda v. Union of India legalized commercial surrogacy. Conversely, the Law Commission in its 228th report (Need for Legislation to regulate Assisted Reproductive Technology clinics as well as rights and obligations of parties to a surrogacy) recommended for the prohibition of commercial surrogacy. A Public Interest Litigation was filed by Smt. Jayshree Wad in the Supreme Court seeking a ban on the commercialisation of surrogacy. Accordingly, notices were issued by the apex court to the Ministries of Law and Justice, Commerce and External Affairs, Home Affairs and Health and Family Welfare along with the Indian Council of Medical Research (ICMR) and Medical Council of India (MCI). Owing to legal notice Cabinet Secretariat filed an affidavit submitting that the legislation will be brought early. In 2014, the Department of Health Research-informed about the circulation of the draft bill of surrogacy for inter-ministerial consultation. A Group of Ministers was constituted for deliberating upon the provisions of the said draft bill. After due suggestions and conclusions by the Group of Ministers and requisite consultation with the Ministry of Law and Justice, the bill was finalized. It was approved by the Cabinet and consequently was introduced in the Parliament on 21st November 2016 where it was referred to Parliamentary Standing Committee on Health and Family Welfare whose 102nd report was laid down on the table of Lok Sabha as well as Rajya Sabha in the year 2017. After accepting 26 recommendations out of 42 recommendations made by the Committee, Cabinet approved the bill on 21st March 2018. The bill was introduced in Lok Sabha in July 2019 and was passed by it in August 2019. It was then sent to Rajya Sabha and eventually in November 2019 was referred to Select Committee. The Select Committee of Rajya Sabha held ten meetings starting from December 2019 to February 2020 and proposed significant amendments to the bill. The Union Cabinet approved the Surrogacy (Regulation) Bill, 2019 after incorporating recommendations of the Select Committee in the year 2020. Following are the major changes suggested by the Select Committee:- Substituting 'compensatory' for 'altruistic' - It has been recommended by the Committee to use the term 'compensatory surrogacy' instead of 'altruistic surrogacy' as, otherwise, the legislative intent of preventing exploitation of surrogate mothers will be defeated for altruistic surrogacy is deemed to be done out of compassion which will eventually lead to exploitation of the surrogate mother whereas compensatory surrogacy will comprise of all the expenses and losses incurred on account of the surrogacy. But the Department of Health Research stated that the use of 'compensatory surrogacy' may lead to commercialization of surrogacy and hence not incorporated in the bill. Moreover, insurance coverage has been provided for the surrogate mother in the bill. Therefore, 'and such other prescribed expenses' were added to clause 2(b) which contains the definition of altruistic surrogacy in order to cover expenses and losses other than medical expenses. Thus, the term 'altruistic surrogacy' was not altered and the intent of recommendation was fulfilled. Deletion of Clause 2(j) - Clause 2(j) defines the term 'infertility' and when it is read with clauses 2(r), 4(ii)(a) and 4(ii)(a)(I), it provides eligibility criteria for availing surrogacy procedure. Infertility was defined as the inability to conceive after 5 years of consummation of the marriage. Also, it made it mandatory for the couple to obtain a certificate of infertility from the District Medical Board. The Committee recommended the deletion of the said clause as the time period of 5 years is a very long and mandatorily obtaining certificate of infertility can be offensive as well as insulting. Amendment of Clause 2(q) - Clause 2(q) defines insurance to be provided to the surrogate mother. Committee recommended for covering medical expenses as well under the insurance along with other provided expenses. Insertion of Clause 2(r)(a) - Clause 2(r)(a) defines intending women which include a widow or a divorcee aged between 35 to 40 years. Extending surrogacy to a couple of Indian origins - The Committee recommended that a couple of Indian origins may be allowed to avail surrogacy in India. Agreement - The Committee recommended for a tripartite agreement between the intending parents, surrogate mother, and the authority. Extension of insurance cover - The Committee recommended for extending insurance cover from 16 months to 36 months. Removal of the term 'close relative' - Clause 4(iii)(b)(II), as recommended by the Committee, is amended to remove the restriction that surrogate mother shall be a close relative of intending parents. CONCLUSION AND SUGGESTIONS The recommendations by the Select Committee are undoubtedly well thought of and have been pondered over in detail but still, the bill has major lacunae. The foremost being allowing only married couples, widows, and divorcees (female) to avail surrogacy. This violates articles 14, 15, and 21 of the Constitution of India as LGBTQ+ community, live-in couples, single males, single females (except widows or divorcees) have been completely neglected. This infringes the reproductive autonomy of the mentioned sections of people and violates article 21. The object of the Legislature is the prevention of exploitation of surrogate mothers has no nexus with the proposed differentia and hence is violative of Article 14. Overlooking the LGBTQ+ community violates article 15. After the pathbreaking judgment in Navtej Singh Johar, such discrimination by the Legislature was not expected of, that too without intelligible differentia. A blanket ban has been introduced on commercial surrogacy for preventing the exploitation of surrogate mothers. This seems ironic as at one point of time India was considered as surrogacy hub and Anand (Gujarat) was regarded as the surrogacy capital of the world. Even the apex court in 2009 legalized commercial surrogacy. In my opinion, the Bill could have efficiently regulated commercial surrogacy as it provides for the hierarchical setup of medical boards and registration of surrogacy clinics. In addition to this, it provides for punishment when the offense of exploiting the surrogate mother is committed. Moreover, there is no certainty that surrogate mothers will not be exploited in altruistic surrogacy. The minimum age of intending couples is 23 and 26 years in case of female and male respectively which shall be brought at par with the legal age of marriage that is 18 and 21 in the case of female and male respectively. Besides, it provides that the couple shall have not had any surviving child biologically, through adoption, or through surrogacy (a child who is physically or mentally challenged or is suffering from a life-threatening disorder or fatal illness is an exception). This provision infringes reproductive autonomy to a great extent, that too without any reasonable cause. Furthermore, the age provided for surrogate mothers is also questionable. The upper limit being 35 years cannot be challenged due to medical complications in the female body but the lower limit that is 25 years shall be brought at par with the legal age of marriage. In addition to this, it provides that the surrogate mother should be married and shall have at least one child. This restriction, again, has no reasonable basis. The Committee recommended for a tripartite agreement overlooking the fact that there can be the utmost 5 parties in a contract of surrogacy, namely, genetic father, genetic mother, surrogate mother, commissioning father, and commissioning mother. Contract of surrogacy being a specific contract shall have a separate set of provisions for governing it efficiently. To sum up, even after referencing to Select Committee the Bill has serious lacunae that infringe rights of individuals and fail to fulfill legislative intent. Reference(s) [1] Surrogacy in Black Law Dictionary, Family Law; p. 349. (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By- Dhyaneshwari Rehpade, 3rd Year, B.A., LL.B. (Hons.) student at National Law University, Nagpur. INTRODUCTION This unprecedented situation of Pandemic has disturbed the domestic fabric of the family by affecting the mental as well as physical health of the members of the family. Where everyone in the search for a safe place and environment, millions of human life are separated and lose contact with the family, friends, relatives, but still, the virtual world is playing the role of connectivity between human relations. COVID-19 destroyed countries' economic, medical, and social structure, which has imposed severe mental health issues on humans. In this regard, United Nations Secretary-General Anto Nio Guterres cited that lockdown and quarantine is the key strategy to curb the spreading coronavirus, but this will confine women and children with abuser. "Due to the economic and social pressures, the fear is grown and seen a horrifying surge in domestic violence." The current situation of COVID-19 has adversely affected the domestic family by its unprecedented proliferation regionally as well as globally. Living inside a home for a longer time is now became the risk for women as well as children. This is evidenced if we glance at the statistics and report of various organisations, such as last year reports by the National Crime Records Bureau of India is 2018 recorded with 103,272 cases of domestic violence. But in the single month of March, the National Commission for Women received 370 complaints. 24/7 helplines are receiving complaints, phone calls regarding violence at home, at the workplace. Recently, reports from Asia, North and Latin America, and Europe have increased and asked for support.[i] THE RAMIFICATION OF DOMESTIC VIOLENCE ON WOMEN AND CHILD Child exploitation, child abuse, violation of child rights are pertinent the global issues. The disturbing trend in this regard is escalating cases of violence against women and children. Currently, the rate of violence is rising and affecting victims mentally. Not just the children but also the women are the victims of domestic violence, sexual abuse, and torture, pregnancy. Legally everyone has a similar and equal right to live with dignity, but still, children and women are getting exploited due to their vulnerability. As per article 21 of the Indian constitution, no person shall be deprived of his life or personal liberty except according to the procedure established by law. The majority of the population is behind the doors, and therefore it is difficult to say that every woman and child is safe. Being at home, increases the risk of exploitation, cyberbullying, physical and sexual abuse. There was a time when women were able to report cases of domestic violence due to social support. Still, in this lockdown period, it became difficult for women to go out or report their case because the abuser, who is staying at the same place. The Government has observed the reports and seen the rate of increase in domestic violence cases during the lockdown. The national commission for women reported with almost 257 cases at the end of March 2020. Before the lockdown, it was easy to judge children's behavior and symptoms of domestic violence. But as the lockdown has to lead to the closure of schools, it isn't easy to help them. National problems such as income loss, economic insecurity, and widespread jobs are the causes of domestic violence against children and women. The women who are living in rural areas are facing many challenges such as discrimination, poverty, lack of medical and social services in addition to violence by their husbands and also, scarcity of food and ration. Statistics point out to the fact that one in three women have experienced violence at some point in their lives, and have been killed or murdered. Before COVID-19, there was a lack of investments in the essentials services for the protection of women, but now it is getting tough for women to avail of any of such essential services. There are organizations, NGOs, national platforms that work for women and their protection, but lack of knowledge on how to avail the results of their services in cases unreported. To curb the spread of COVID19, there are impacts on the provisions of health, justice, and policing services. Health workers are tackling the clinical management of COVID patients, mental health care, counseling for survivors of violence, then police and justice sector is prioritizing monitoring social distancing, quarantine, or maybe other public unrest crimes, e.g., looting, robbery. Therefore it limits access to justice.[ii] EFFECT ON CHILD RIGHTS The dismal state of the education sector is gauged by the findings of UNESCO recording 60% of the world student population is out of school studying. UNESCO has taken a step to support those countries that are of less educational development resources for remote learning. That may help them to improve connectivity between students and educational resources. Asian countries, such as Bangladesh, China, and India, have adopted digital education. In India, the Ministry of Human Resource Development has developed different platforms for online learning and creating the National Digital Library of India during the health crises. Other aspects of closure of schools include: · Dropping out education · Poor Nutrition · Less access to technology · Economic crisis · Child marriage · Child labour · Increase in exploitation · Social isolation As per the new educational system, online digital learning has certain pros and cons. More than 385 million children live in extreme poverty. Therefore, low-income groups can't be able to avail of the service of digital online learning. There is an observation that focuses on daily meals from the school were 100 million children in India are getting health care and food from schools. Not just the education but also the preventive measure has been a task for them not to be exposed to the virus. The most affected group among the children is persons with disabilities. These people are facing a lack of accessibility to these virtual learnings. Further, they have always faced discrimination and had to make do with inferior quality of education. As per the New Education Policy 2020 in India, it gives an indication for the future that children in poor and rural get access to education. This will attract more students from the minority community. The Indian Government has also tried to decrease the stress on children's mental health, which is the main psychological issue due to Covid-19. In the context of "Digital Divide," women and children have led access to the internet due to less technological awareness, low income, less handling knowledge. Therefore, this situation calls for the initiation of proactive steps on the part of the government machinery to provide digital infrastructure to children as well as teachers. Most disturbingly, in Rural areas, people are facing problems such as heavy downpour, incessant floods, blackouts, weak network connections culminating in lack of accessibility in the virtual learning platform. To provide relief in such a difficult situation, the Ministry of Rural Development's Mission Antyodaya survey trying to improve the electricity issue. LEGAL DIRECTIONS The Supreme Court gives various directions to different committees and Governments for the protection of children from domestic violence, abuse, and COVID-19 myriad crisis. Supreme Court has taken a suo moto cognizance of the issue for the protection of children under the provision of Juvenile Justice Act, 2015. The Government should follow the following directions: · Training the volunteers by developing the system for taking care of children. · Develop a monitoring system by making advance counseling to prevent violence, abuse, neglect, gender-based violence, which may create stress. · Need to ensure an adequate budget to spend on the allocation and effective management. · To make available good quality of face masks, soap, disinfectants or alcohol-based disinfectants, etc. · Proper management of availability of food, clean drinking water, menstrual hygiene products, and other necessities. Other directions were given to CCIs, to set up new National Helpline on COVID-19 which are 1075 and 1800112545. There should be proper online settings or video sessions to prevent children in their homes, SAAs, Open shelters.[iii] Amidst escalating instances of domestic violence during the phase of lockdown, the steps undertaken by Delhi High Court are worth reckoning. It has directed Delhi Government as well as the Central Government to effectively implement protection of women under the Domestic Violence Act, 2005. It has directed various NGOs and organizations that are working for women and child rights to offer and take precautionary measures for victims and abusers. CONCLUSION The effect of COVID-19 on women and children is the most prevalent issue in the current time. The country needs to focus on increasing cases of violence and exploitation and its impact on the psychological, physiological, and mental health of women and children. Many children will lose their childhood and permanently get affected by this. To make the homely environment, not just the victim, need the counseling but also the abuser. Women need to raise their voices so that justice will prevail, and in the future, it will be easy to decrease domestic violence. References [i] COVID-19 and Essential Services Provision for Survivors of Violence Against Women and Girl, UN Women, [ii] Supra note 1. [iii] Prachi Bhardwaj, “SC issues extensive directions to protect children in protection Homes from spread of coronavirus”, SCC ONLINE, April 4, 2020. (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By- Mugdha Mohapatra, 4th Year B.A L.L.B Student at National Law School of India University, Bangaluru In this paper, I will argue that the lack of consideration for consent under the Protection of Children from Sexual Offences (POCSO) Act 2012 violates a child's right to dignity and privacy. I will also attempt to prove that the absence of taking into account consent also stands against articles 12, 16, and 18 of the United Nations Child Rights Convention (UNCRC) 1989. I will first examine how sections 3, 7, 19, and 21 of the POCSO act violate the right to dignity and privacy of a child. Practical problems encountered in the implementation of these sections of the POCSO act have been outlined. Lastly, a possible solution has been presented. VIOLATION OF RIGHT TO DIGNITY AND PRIVACY According to section 2(d) of the POCSO Act, a child is anyone below 18. The broad aim of this act is to protect children from all forms of sexual offenses, protect the privacy of a child, and fulfill the state's obligation under the UNCRC.[1] In doing so, I contend that it ignores the right to dignity of a child. Before understanding how this is true, one thing needs to be understood. Under article 21 of the Constitution, children have the right to dignity and other fundamental rights.[2] They are not merely extensions of their parents and hold individual rights.[3] Section 3 and 7 define the terms 'penetrative sexual assault' and 'sexual assault.' The definitions exclude any allowance for taking into account the children's views involved in the commission of said offences. According to the report of the Rajya Sabha standing committee, there should be no allowance of consent as this would place the victim under focus. Only the conduct of the accused should be taken into account.[4] But what about scenarios where both parties are children? According to a clinical psychiatrist interviewed by the Centre for Child and Law-NLSIU, Bengaluru youngsters these days can be emotionally and psychologically mature.[5] The law treats the child as a criminal as someone who has committed a wrong. This, in turn, leads to a mixture of shame, embarrassment, and regret.[6] Due to increased exposure to the media and the internet, sexual exploration is not uncommon among children below 18. In such an environment, this act's provisions can lead to an environment where children are under a constant threat of being subject to ostracism by being defined as criminals. Under section 34 of the act, youngsters involved in the commission of an offence under the POCSO act shall be dealt with section 10 under the Juvenile Justice Act. In the best-case scenario, the child will be apprehended by a special police unit or a child welfare officer and, after an inquiry, either be released or placed in a juvenile home. According to the J.S.Verma committee report, these homes are yet to attain the infrastructure necessary for reformation or rehabilitation.[7] Forms of social behavior by the young are characterized as disruptive and deviant, rather than being recognized as emotional responses to social constraints or strategies to cope with local contexts.[8] In the Indian context, a large number of cases filed under the POCSO are by disgruntled parents against their daughter's choice of partner. In State v. Vikram,[9] it was alleged that the accused had kidnapped the victim and committed rape. The victim herself stated that she was in love and had accompanied the victim willingly. The father of the victim later withdrew the case. Criminalization of romantic relationships leads to minors' exposure to the harshness of the criminal justice system and impedes healthy attitudes to sexual behaviour.[10] Another unintended consequence of criminalization of all kinds of sexual conduct between minors is that it is in violation of Article 5 and Article 17 of the UNCRC that relates to access of information regarding physical and mental health. Declaring sexual conduct as illegal pushes such issues to the background and hinders children's access to sexual education. Under the reporting requirements of sections 19 and 21 of the POCSO act, a parent, counselor, or anyone a child may be comfortable sharing information with, is now obligated to report such an act as a crime. Such provisions intensify risk to adolescents by weakening support structures, preventing adolescents from seeking help, and pushing adolescent behavior to no longer be protected. The Supreme Court has observed that "privacy at its core includes the preservation of personal intimacies...privacy connotes the right to be left alone."[11] Article 16 of the UNCRC holds that children should have the right to privacy. This is not to imply that such a right is unqualified or unrestricted. Criminalizing romantic relationships among minors allows police officers, prosecutors and judicial officers to probe into a deeply personal sphere of children's lives. ChildLine operators have noticed that children are often uncomfortable to speak on these matters openly in court or in front of their parents. In cases such as State v. Rahul Balu Gheghadmal & Anr,[12] the victim first admitted she was in a romantic relationship with the accused, then changed her statement during the examination-in-chief. What I would like to draw attention to is the fact that the child had to interact with several representatives of law enforcement agencies and repeatedly express the nature of what had happened. Such interaction with law enforcement harms the mental health of a child.[13] Article 12 of the UNCRC gives children the right to be heard and taken seriously. Although India's commitment to the UNCRC is not absolute or binding, it is relevant to appreciate the reasons for giving children this right. Priscilla Anderson has argued that children are just as able to make decisions in complex factual information, judgments of relative risks, ethical dilemmas, and highly emotional contexts.[14] This is not to discredit cases where the victim has been "groomed" by the accused, but to just bring to the fore the necessity to understand the contexts in which children have made decisions. The result of this can be seen in the numerous cases in which the victims have turned hostile or have appeared as witnesses for the defense.[15] PRACTICAL PROBLEMS In State v. Akhilesh Harichandra Mishra[16] the victim was 15 years old when she eloped and married the accused. The judge in the case held that the matter had been settled as the girl had consented to intercourse. If this case had been any different, the minor who was dependent upon the accused would have been deprived of his support. In cases where the victim is pregnant due to intercourse, the judges have preferred an acquittal over conviction as the victim was dependent upon the accused. Such considerations should not be left to the discretion of the court. There is a legal problem when similar cases are treated arbitrarily by courts, in cases like State v. Sachin Gotiram Kedar[17], the special court held that as the victim was 17 years old, she was capable of understanding the consequences of sexual intercourse. In other cases, consent or the victim's capacity to "understand consequences" is not taken into account. The exception provided for marital rape under section 375 of the IPC, which did not classify sexual intercourse with a man and his wife not under 15 years as rape, contradicted the provisions of POCSO. (The Supreme Court has read down the exception to section 375) Theoretically, section 42A of POCSO overrides section 375 of the IPC. Still, courts have taken contradicting views in similar cases; in Jahirul Maulana v. State of Assam, the court quashed the charge sheet against a man who had allegedly raped a minor, However, the Karnataka High Court in Soni Nihal v. Sri. Sandeep Patel, with nearly identical facts and observed that the "criminal proceedings initiated for the alleged offense [rape] could not be quashed." A POSSIBLE SOLUTION Having enumerated the problems and challenges in the prevailing system, I propose a possible solution based on a study of the system of the age of consent prevailing in Germany. This is not to say that it is a fool-proof system but simply propounds a more effective solution. Under sections 176, 180, and 182 of the German Criminal Code, any sexual act with a minor below the age of 14 is punishable except if both parties are of the same age. In the age group of 14-16, consensual sexual activity with some of the same age is permitted. In the age group of 16-18 are eligible to consent to sex except if, in an adult-child relationship, the adult is entrusted with the care or protection of the child.[18] In the age of consent laws of Germany, Canada, Switzerland, and Australia, a "close in age exemption" is also provided. In the Indian context, a tiered system of age on consent laws and a close in age exemption will be a significant departure from the existing system. Although such a system would have to be reworked based on our country's distinctive social conditions, it will allow teenagers autonomy over their bodies and not push such issues to the background and allow them to seek help when required. While looking at cases of adult-child relationships, the court may also have the freedom to consider specific contexts and circumstances. Lastly, the necessity for sex education for children of all age groups can't be denied. Comprehensive sex education recognizing the different situations facing youngsters today is much more effective than exposing them to harsh consequences under the law. CONCLUSION Sexual repression means repression of one's identity and their right to be themselves[19], this stands true in the case of criminalization of sexual activity amongst young people. It is impractical in the context of the evolving capacities of children to disregard their choices. Moreover, it has the negative effect of depriving them of their right to seek guidance and support. In the actual application of this law, several internal contradictions have been noted. Decisions have been made in blatant disregard of the POCSO Act and consideration of other factors. Contradictions with existing laws have also led to a subjective application of POCSO laws. Therefore having understood the negative implications of a lack of age of consent in the Indian context and its harmful effects on children's development, a departure from the current system is crucial to a system where children's views and rights are taken into account. References [1]Protection of Children from Sexual Offences Act, 2012, Statement of Objects and Reasons. [2]Society of Unaided Private Schools of Rajasthan v. Union of India, AIR 2012 SC 3445. [3] Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development, [2013] ZACC 35, (Constitutional Court of South Africa) [hereinafter Teddy Bear Clinic for Abused Children]. [4]Parliamentary Standing Committee on Human Resource Development, Rajya Sabha, THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES BILL, 6.9 (2011). [5]Centre for Child and Law, Report of Study on the working of Special Courts under the POCSO Act, 2012 in Maharashtra [unpublished CCL-NLSIU]. [6]Teddy Bear Clinic for Abused Children [2013] ZACC 35 [7]Report of the Committee on Amendments to Criminal Law, 21(c), (2013). [8]M. Waites, The Age of Consent, 13 (2005). [9]State v. Vikram, Special (Child) Sessions Case No. 6 of 2015, (Pune). [10]Teddy Bear Clinic for Abused Children, [2013] ZACC 35. [11] Justice K.S. Puttaswamy v Union of India, 2017 SCC OnLine SC 996 [12]State v. Rahul Balu Gheghadmal & Anr Sessions, Case No. 240 of 2014, (Nashik) [13]Supra note 8 [14]P. Alderson, School students' views on school councils and daily life at school, Children & Society (2000) [15]Supra note 5 [16]State v. Akhilesh Harichandra Mishra, Spl. C. No. 165 of 2015 (Thane) [17]State v. Sachin Gotiram Kedar Sessions Case No. 25 of 2015, (Nashik) [18]Section 182, German Criminal Code, 1871. [19]Supra note 7 at 27 (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By- Likhita Agrawal & Vatsalya Pankaj, Third Year, B.A.LL.B.(Hons.) students at National Law University, Nagpur INTRODUCTION Inter-country adoptions refer to adoptions wherein the nationality and place of residence of the adoptive parents and the adopted child lie in different nationalities.[1] Such adoptions are often seen where one country has lower birth-rates and an aging population, a phenomenon seen in developed countries and countries with huge birth-rates and a relatively young population, a phenomenon seen in developing countries.[2] As such, adoptions involve sovereign states, multiple conventions govern it. The Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption, 1993 (“Hague Convention”), and Convention on the Rights of the Child, 1990 (“CRC”) outline the rights of the child and the responsibilities of both states towards the child. It is pertinent to note that any legislation or treaty for a child works on the “Doctrine of Best Interest,”[3] that is, the law should be interpreted and applied to benefit the child. However, on the point of inter-country adoptions, many objections have been raised. Firstly, the child loses the culture and heritage of the country of birth and is “forced” to accept the culture and society of the country of adoption. Secondly, often Scholars have highlighted that while adoption does lead to a severance of ties with the family of birth and replaces it with new relations to the family of adoption, the bond between the country of the birth and the child cannot be broken.[4] Such objections have led to the call for the “Doctrine of Domestic Preference,” which essentially provides that if the child can be adopted by a parent in the country of birth, then that should be preferred over adoption by a family that is situated outside the country. There are more serious risks that come with Inter-country adoptions too. Often it is seen that such adoptions become a money-making exercise for people looking to exploit the system.[5] Such children on the pretense of adoption are being trafficked, leading to severe human rights violations. The blog shall be discussing the multitude of facets of Child Adoptions, the regulatory mechanisms, and how to prevent them from becoming unethical human trafficking exercises. CHILD TRAFFICKING AND INTERNATIONAL CONVENTIONS ON CHILD RIGHTS AND ADOPTIONS The CRC focuses on the basic human rights of children with the view of safeguarding the interest and overall development of children. The convention aims at the ‘three Ps,’ i.e., rights of children to provision, protection, and participation of the children. Article 21 of the convention talks of the recognition of adoption between different countries. It states that the child may be adopted by a family other than his own country when it can be believed that the circumstances in the birth country are not in his benefits. This implies that through the adoption, the country in which the child would be brought up would serve for a better environment and play a positive impact on the growth and development of the child. Further, it calls for ‘appropriate measures’ to be taken to ensure that the adoption process does not involve any monetary consideration. However, it is noteworthy that the term appropriate measures are subjective. What may be appropriate for one case may not be the case for another and hence requires elucidation. This is to prevent it from being used as a veil for the heinous act, such as child trafficking.[6] Additionally, the “best interests” of the child also has a various interpretation. It cannot be said that merely because a living condition in one country is bad, it will improve on adoption by another country. Often it is seen that in cases of adoption of a girl child to countries of Africa and Asia, they are exposed to Female Genital Mutilation in the name of the tradition and culture. Thus, while the intention was to secure better living conditions, the children are subject to more severe consequences. This is especially important as Article 14 of CRC expresses that the state must consider the right of the child regarding the freedom of thought, conscience, and religion, and it cannot be ensured in some countries with a specific religion. The other convention which specifically deals with intercountry adoption is the Hague Convention. The convention, while having noble objectives of facilitating and regulating Intercountry Adoptions, fails to achieve its goal. This is so as it more of a restrictive nature and comes with several compliances that would be required to be fulfilled. The numerous compliances burden the states and the adoptive parents and hence difficult to follow. In place of being restrictive, it should be positively promoting these adoptions. Additionally, jurists have viewed that; the convention is not sufficient to curb the problems of child trafficking. Firstly, The regulations sometimes take away a good fortunate life of the children or sometimes push them in a perilous situation. Secondly, while the preamble of the convention mentions that goal of abolishing the buying-selling of the children, none of the Articles of the convention calls upon states to prohibit it. Further, there is no obligation created on parts of states to punish such offences. Furthermore, the convention also lacks to encompass anything about the independent adoption practices, which are a major source of child trafficking. Thus, the deterrence factor is absent in the convention, which could prevent people from conducting such inhumane activities. Jurists have pointed out that the process of intercountry adoption should have a uniform and single adoption procedure, which can eliminate the confusion and can lead to efficient governance. Therefore, the issue of child trafficking must be dealt with in a vigilant manner, which is not the case in the convention. Along with these conventions, there are certain other conventions which prohibit child trafficking. The point which needs to be taken into consideration is that though all these conventions mentioned above condemn the practices of trafficking bit, none of these discuss either its inter-relation with inter-country adoption or the measures to be taken to curb trafficking conducted under the shield of inter-country adoption. CONTEMPORARY ISSUES OF CHILD TRAFFICKING While the conventions fail to relate Inter-country adoption to child trafficking, there are multiple instances where on the pretense of adoption, the reality of child trafficking as taken place.[7] Examples can be taken from Thailand, wherein hundreds of children were “adopted” through the process of trafficking. There are many reasons why such incidents occur. Firstly, while the state must which, the child originally belongs to run background checks on the family of adoption, once the adoption process is complete, the child is outside the jurisdiction of the state. Hence, as the child, in essence, is no longer a national of the original state, there is no responsibility on the state, giving the adoption to check for the welfare of the child.[8] This leads to the complexity that, if the child was indeed trafficked and never reached the intended country, then which country should take responsibility. This leads to the child becoming essentially stateless, as he would cease to be a national of state of birth and wouldn’t be able to acquire the citizenship of the state of adoption because he would find himself in a different country, which would be against his right to statehood as per Article 9 of UDHR. There are further issues that come with international adoptions. The commercialization of the act is strictly prohibited; however, it seems to be rampant. Also, due to vaguely worded Articles, the providing of gifts would be allowed, but the providing of bribes for adoption is strictly prohibited.[9] There is a multitude of things that are wrong with the existing framework for international adoptions, and they need a serious relook. CONCLUSION It is clear that Inter-country adoptions come with inherent risks. There is the risk of culture, identity, and often even the risk of trafficking. At the same time, some treaties regulate such adoptions and are specially designed to prevent exploitation of the system. There is a need for countries to take more responsibility and cognizance of human trafficking issues. The doctrine of the best interest of the child must not be limited to only finding a suitable family for the child but also extend up to ensuring that the child reaches such a family safely. Further, it must be the responsibility of the receiving country that such adoptions don’t become a tool for criminal offenses. There is a need to stop the use of intercountry adoption as a veil for the brutal practices of trafficking. This is an issue that has not been highlighted yet. However, there is an urgent need for it to be recognized as so to prevent the exploitation of human rights that is currently going on. References [1] Jordan Bunn, Regulating Corruption in Intercountry Adoption, 52 Vand. J. Transnat'l L. 685 (2019). [2] Mark Eade, Inter-Country Adoption: International, National and Cultural Concerns, 57 Sask. L. Rev. 381 (1993). [3] Hague Convention, art. 3(1); See also Celica Bojorge, Intercountry Adoptions: In the Best Interests of the Child, 2 Queensland U. Tech. L. & Just. J. 266 (2002). [4] David M. Smolin, Intercountry Adoption as Child Trafficking, 39 Val. U. L. Rev. 281 (2004). [5] Trish Maskew, Child Trafficking, and Intercountry Adoption: The Cambodian Experience, 35 Cumb. L. Rev. 619 (2004). [6] Supra note 4. [7] Supra note 5. [8] Supra note 2. [9] Supra note 4. (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

By- Yukta Ambastha & Shreya Srivastava, 2nd Year, B.A., LL.B (Hons.) Students at National University of Study and Research in Law, Ranchi INTRODUCTION Incest is defined as sexual intercourse between two persons commonly regarded as too closely related to marry. While many developed countries like Britain, the US, and Germany regard incest as a serious offence and have prescribed strict punishments for it, India does not regard incest as a separate crime. Incest is not defined in the penal provisions of India. If individuals are involved in incest, they may be punished for any other legal ground such as sodomy or rape. If the victim is a minor, it has separate sexual abuse provisions under the Protection of Child from Sexual Offences Act 2012. It has not been made a separate offence per se. Incest is one of the most dreadful crimes of all, and yet more common than imagined. Even if a female minor child is sexually assaulted often by their close relation, the punishment of outraging the modesty is only two years of imprisonment. Similarly, the punishment of rape is a maximum of ten years. In 1983 the laws against rape were amended to include the policemen, prison, and hospital staff who rape women in their custody. They have been made liable for custodial rape. The issue of incest remains a grey area in the law. Father being the natural custodian, should also be included in this category. An incestuous relationship with a minor can not be justified on any grounds and needs to be addressed. Juvenile incest should be placed under rarest of rare category, and stringent laws should be passed to remove this social stigma from society. PREVALENCE OF JUVENILE INCEST IN SOCIETY A stark reality is that the incidents of incest are widely prevalent in society. We usually do not talk about the sexual abuse of children and the incidents of incest, but it is no secret that they exist in society. It is prevalent not only in slums and among the deprived segments of the society, but also in educated, well-educated families. There have been horrible instances of juvenile incest in India. In 2020, a 15-year-old boy raped his own younger sister. In a horrific case of incest in 2017, a man and his son were arrested for sexual assault on their minor family members. While the man abused his elder daughter for nearly a year, the son forced himself on his other sister. In the same year, a 10-year-old victim was raped by her uncle, and she got pregnant. As per the report of RAHI (Recovering and Healing from Incest), a Delhi based organization, working on the issue of child sexual abuse titled Voices from the Silent Zone had revealed that 76% of respondents to its survey had been abused when they were children — 40% of those by a family member. The findings of a study undertaken by the BBC point out that one out of ten women covered by the study reported some sexual abuse during childhood by known persons, ranging from father and uncles to doctors and counselors. Boys and girls are both victims of juvenile incest. Victims of incest are usually reluctant to reveal the crime since the abuser is a known person who is trusted and is usually in a position of authority to the victim. In Indian society, the family is more anxious to protect abusive fathers or such perpetrators to protect the family reputation, so most go unnoticed. It is a highly sensitive issue that can destroy the essence of a family; hence, it is often kept hidden in the dark corners of the family. The psychological and physical impact it has upon a child is rarely taken into consideration. Such incidences are increasing every year in India. Most of the cases are unreported due to the fear of society. Incest is considered a social taboo, and hence stringent laws are required for curbing it from roots in the society. IMPACT OF JUVENILE INCEST ON THE MENTAL HEALTH OF MINOR There are severe ramifications of incest on the mental health of the minor. A human being's experiences and relationships with their family members during childhood play a vital role in their well-being for the rest of their lives. The exposure of widespread physical and emotional abuse within the family has been of great concern. Incest is the breach of trust. It is this betrayal of innocence and resultant confusion, along with the loss of control and power over one's behaviour, which leads to the emotional and psychological impact on the victim. Victims often experience the incestuous act and later as adults, a sense of shame, a feeling of powerlessness, and a loss of their childhood. Juvenile incest victims suffer short-term and long-term effects, including eating disorders, vomiting, alcohol abuse, suicidal thoughts, and self-mutilation.[1] . THE NEED TO MAKE IT A SEPARATE OFFENCE Now there arises a question as to whether such conduct should constitute an entirely separate offence, called "incest," or whether it should simply be treated as an aggravated form of statutory rape. It is typically even more wrongful and harmful for an adult to have sex with a related juvenile than for him to have sex with one who is unrelated. The adult has a special duty of care to the related juvenile. In particular, parents must look out for their minor children's best interests and protect them from harm. When parents (and other related relatives) have sex with juvenile children, they invariably engage in a gross violation of such duties. Moreover, the harms done to related juveniles are even worse than those done to unrelated ones. The extremely cruel and debased conduct of the father, brother, uncle, and near relatives of the victim within the roof is a more atrocious act than rape by a stranger. Treating incest as an ordinary offence of rape and giving the same punishment will distort the severity of the offence. To impose a severe penalty to the near relations and persons in a position of trust and authority who more often than not commit the offence of sexual assault on the members of the family or on unsuspecting and trusting young person is essential given the enormous number of incest in the country. Andrew Ashwort[2] stated that "widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signaled by the law, and that offences should be divided and labeled so as to represent fairly the nature and magnitude of the law-breaking." How we choose to label and classify offences sends important signals about why we are criminalizing the conduct, and the priority of wrongs and harms it entails. Criminalizing juvenile incest would send a strong message to the community, and people would fear before committing such heinous crimes. Therefore juvenile incest should be punished more severely and should not be simply treated as an aggravated form of statutory rape. CONCLUSION We need to comprehend and accept incest as a part of our society and realize that closing our eyes and denying it will not solve the problem. The abusive act includes the exploitation of the child's body and the trust associated with the relationship. The victims, especially children, are helpless before the perpetrators of crime; hence, they need to be provided solace and protection, keeping in mind that they have been subjected to sexual abuse of the worst possible nature. The 172nd Law Commission Report also recommended provisions for incest. It proposed to include rape committed by father, grandfather, or brother or any other person being in a position of trust or authority towards the other person within its ambit.[3] Article 19 of the United Nations Convention on the Rights of the Child (1989) states that nations should take all measures to protect children from all forms of abuse including mental violence, negligent treatment, maltreatment, exploitation or sexual abuse by a parent, legal guardian or any other person who is entrusted with the care of the child. India has ratified this convention and therefore is obligated to take whatever action is required to prevent child abuse. The need of the hour to revisit the laws and make the horrific crime of juvenile incest a separate offence under India's penal provisions. References [1]4 SHELDON TRAVIN, JUVENILE PSYCHIATRY AND THE LAW 85( Richard Rosner and Harold I Schwartz ed. 1989) [2]ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 78-80 (6th ed.2009) [3] Law Commission, 172nd Report on Review of Rape Laws, 2000 (Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)