Offences Against Children

Proviso. For reasons to be recorded in writing, the Board or Committee holding the inquiry may permit such disclosure, if in its opinion it is in the best interest of the child.

Sub-section (2). The police shall not disclose any record of the child for the purpose of a character certificate or otherwise, in a pending case or in a case which has been closed or disposed of.

Sub-section (3). Contravention of sub-section (1) is punishable with imprisonment up to six months, or a fine up to two lakh rupees, or both.

The words "in the pending case or in the case which" in sub-section (2) were substituted for "in cases where the case" by Act 23 of 2021 with effect from 1 September 2022, extending the bar to pending cases as well as closed ones.

Sections 75 to 79: cruelty and exploitation

Section 75, cruelty. Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child, or causes or procures the child to be so treated, in a manner likely to cause the child unnecessary mental or physical suffering, is punishable with imprisonment up to three years, or a fine of one lakh rupees, or both.

First proviso. Where abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful, and the penal provisions shall not apply.

Second proviso. Where the offence is committed by a person employed by, or managing, an organisation entrusted with the care and protection of the child, he is punishable with rigorous imprisonment up to five years and a fine up to five lakh rupees.

Third proviso. Where, on account of the cruelty, the child is physically incapacitated, or develops a mental illness, or is rendered mentally unfit to perform regular tasks, or has risk to life or limb, the punishment is rigorous imprisonment not less than three years, extendable to ten years, and a fine of five lakh rupees.

Section 76, begging.

Sub-section (1). Whoever employs or uses any child for the purpose of begging, or causes any child to beg, is punishable with imprisonment up to five years and a fine of one lakh rupees. Proviso: if, for the purpose of begging, the person amputates or maims the child, rigorous imprisonment not less than seven years, extendable to ten, and a fine of five lakh rupees.

Sub-section (2). Whoever, having the actual charge of, or control over, the child, abets that offence is punishable with the same punishment, and shall be considered unfit under section 2(14)(v). Proviso: the child shall not be considered a child in conflict with law under any circumstances, and shall be removed from the charge or control of such guardian or custodian and produced before the Committee for appropriate rehabilitation.

Section 77, giving intoxicants. Whoever gives, or causes to be given, to any child any intoxicating liquor, narcotic drug, tobacco products or psychotropic substance, except on the order of a duly qualified medical practitioner, is punishable with rigorous imprisonment up to seven years and a fine up to one lakh rupees.

Section 78, using a child to carry them. Whoever uses a child for vending, peddling, carrying, supplying or smuggling any intoxicating liquor, narcotic drug or psychotropic substance is liable to rigorous imprisonment up to seven years and a fine up to one lakh rupees.

Section 79, exploitation of a child employee. Notwithstanding anything in any law, whoever ostensibly engages a child and keeps him in bondage for the purpose of employment, or withholds his earnings, or uses those earnings for his own purposes, is punishable with rigorous imprisonment up to five years and a fine of one lakh rupees.

Explanation. "Employment" includes selling goods and services, and entertainment in public places for economic gain.

Sections 80 and 81: adoption and sale

Section 80, adoption without procedure. If any person or organisation offers, gives or receives any orphan, abandoned or surrendered child for the purpose of adoption without following the provisions or procedures provided in this Act, that person or organisation is punishable with imprisonment of either description up to three years, or a fine of one lakh rupees, or both.

Proviso. Where the offence is committed by a recognised adoption agency, then, in addition to the punishment awarded to the persons in charge of and responsible for the conduct of its day-to-day affairs, its registration under section 41 and its recognition under section 65 shall also be withdrawn for a minimum period of one year.

Section 81, sale and procurement. Any person who sells or buys a child for any purpose is punishable with rigorous imprisonment up to five years and a fine of one lakh rupees.

Proviso. Where the offence is committed by a person having actual charge of the child, including employees of a hospital, nursing home or maternity home, the imprisonment shall not be less than three years and may extend to seven years.

The proviso to section 81 names hospitals, nursing homes and maternity homes expressly, and it names them because that is where newborns are, and where the trade in them has been found.

Sections 82 to 85: institutions, militant groups, kidnapping, disability

Section 82, corporal punishment.

Sub-section (1). Any person in charge of, or employed in, a child care institution who subjects a child to corporal punishment with the aim of disciplining the child is liable, on the first conviction, to a fine of ten thousand rupees, and for every subsequent offence, to imprisonment up to three months, or a fine, or both.

Sub-section (2). A person employed in such an institution who is convicted shall also be liable to dismissal from service, and shall be debarred from working directly with children thereafter.

Sub-section (3). Where corporal punishment is reported in such an institution and the management does not co-operate with any inquiry, or comply with the orders of the Committee, the Board, a court or the State Government, the person in charge of the management shall be liable to imprisonment for a term not less than three years and a fine which may extend to one lakh rupees.

Section 83, militant groups and adults.

Sub-section (1). Any non-State, self-styled militant group or outfit declared as such by the Central Government which recruits or uses any child for any purpose is liable to rigorous imprisonment up to seven years and a fine of five lakh rupees.

Sub-section (2). Any adult or adult group which uses children for illegal activities, either individually or as a gang, is liable to the same punishment.

Section 84, kidnapping and abduction. For the purposes of this Act, the provisions of sections 359 to 369 of the Indian Penal Code, 1860 shall mutatis mutandis apply to a child or a minor who is under the age of eighteen years, and all the provisions shall be construed accordingly.

Section 85, disabled children. Whoever commits any of the offences referred to in this Chapter on any child who is disabled, as certified by a medical practitioner, shall be liable to twice the penalty provided for that offence.

Explanation. "Disability" has the meaning assigned to it under clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

A worked example

A man is found using a nine-year-old boy to beg at a traffic signal.

What offence? Section 76(1): employing or using a child for the purpose of begging, or causing a child to beg, punishable with imprisonment up to five years and a fine of one lakh rupees.

The boy's own uncle, who has charge of him, arranged it. He abets the offence and is punishable with the same punishment, and is considered unfit under section 2(14)(v), section 76(2).

Is the boy in trouble? No. He shall not be considered a child in conflict with law under any circumstances, and shall be removed from that guardian's charge and produced before the Committee for appropriate rehabilitation, proviso.

The man had cut the boy's hand to make him a more effective beggar. Then the proviso to section 76(1) applies: rigorous imprisonment not less than seven years, extendable to ten, and a fine of five lakh rupees.

The boy is certified disabled by a medical practitioner. Section 85 doubles it: twice the penalty provided for that offence.

Change the facts: a girl in a Children's Home is beaten by a staff member for talking after lights out. That is corporal punishment, section 82(1): ten thousand rupees on the first conviction, and three months or a fine or both for every subsequent offence. He is also liable to dismissal from service and to be debarred from working directly with children, sub-section (2).

The management refuses to co-operate with the Committee's inquiry. The person in charge of the management is liable to imprisonment not less than three years and a fine up to one lakh rupees, sub-section (3).

A newspaper reports the case and names her. That is section 74(1), punishable with six months, or two lakh rupees, or both, unless the Board or Committee had permitted the disclosure for reasons recorded in writing as being in her best interest.

She applies for a job and the police are asked for a character certificate. They shall not disclose any record of the child, whether the case is pending, closed or disposed of, section 74(2).

Change again: a nurse in a maternity home sells a newborn. Section 81, and the proviso applies because she is a person having actual charge, including employees of a hospital, nursing home or maternity home: not less than three years, up to seven.

An organisation hands over an orphan for adoption privately. Section 80: three years, or one lakh, or both; and if it is a recognised adoption agency, its registration under section 41 and recognition under section 65 are withdrawn for at least a year.

Distinctions

What this does NOT mean

Section 74 is not a general gag. The Board or Committee may permit disclosure, for reasons recorded in writing, where it is in the best interest of the child.

Section 75 does not punish every abandonment. Where it is by the biological parents due to circumstances beyond their control, it is presumed not wilful and the section does not apply.

A child used for begging is not an offender. He shall not be considered a child in conflict with law under any circumstances.

Section 82 does not stop at a fine. A convicted employee faces dismissal and being debarred from working directly with children, and an uncooperative management faces not less than three years.

And section 85 is not a separate offence. It doubles the penalty for the Chapter IX offences when committed on a certified disabled child.

Quick revision

• 74: no report or picture disclosing the name, address, school or any particular identifying a child in conflict with law, a child in need of care and protection, or a child victim or witness; the Board or Committee may permit disclosure for recorded reasons in the child's best interest; the police shall not disclose records for a character certificate or otherwise, pending or closed; six months, or two lakh, or both.
• 75: cruelty by a person having actual charge or control, three years or one lakh or both; abandonment beyond the parents' control presumed not wilful; an organisation's employee or manager, five years and five lakh; incapacity, mental illness or risk to life or limb, three to ten years and five lakh.
• 76 to 79: begging, five years and one lakh, and amputation or maiming, seven to ten years and five lakh; the abetting guardian gets the same and is unfit, and the child is never in conflict with law; giving intoxicants, seven years rigorous; using a child to carry them, seven years rigorous; bondage or withholding earnings, five years rigorous and one lakh, "employment" including selling goods and services and entertainment in public places for economic gain.
• 80 and 81: adoption without procedure, three years or one lakh or both, and a recognised agency loses registration and recognition for at least a year; sale or purchase, five years rigorous and one lakh, and three to seven years where the seller has actual charge, including hospital, nursing home and maternity home employees.
• 82 to 85: corporal punishment, ten thousand on the first conviction and three months thereafter, with dismissal and debarment, and not less than three years for an uncooperative management; militant groups and adults using children, seven years rigorous and five lakh; kidnapping under IPC ss.359 to 369 mutatis mutandis; twice the penalty for offences on a certified disabled child.

Test yourself

1. What does section 74 forbid? Any report in a newspaper, magazine, news-sheet, audio-visual media or other form of communication regarding an inquiry, investigation or judicial procedure from disclosing the name, address, school or any other particular which may lead to the identification of a child in conflict with law, a child in need of care and protection, or a child victim or witness, and the publication of any such child's picture; punishable with six months, or two lakh rupees, or both.

2. Is a parent who abandons a child always liable under section 75? No. Where the abandonment by the biological parents is due to circumstances beyond their control, it is presumed not to be wilful and the penal provisions of the section do not apply.

3. What is the punishment for maiming a child for begging? Rigorous imprisonment for not less than seven years, which may extend to ten years, and a fine of five lakh rupees, proviso to section 76(1).

4. Is a child used for begging treated as an offender? No. The proviso to section 76(2) says the child shall not be considered a child in conflict with law under any circumstances, and shall be removed from the charge or control of that guardian or custodian and produced before the Committee for appropriate rehabilitation.

5. What happens to a recognised adoption agency that gives a child for adoption without following the Act? In addition to the punishment of the persons in charge of and responsible for its day-to-day affairs, its registration under section 41 and its recognition under section 65 are withdrawn for a minimum period of one year, proviso to section 80.

6. What is the punishment for corporal punishment in a child care institution? A fine of ten thousand rupees on the first conviction, and for every subsequent offence imprisonment up to three months, or a fine, or both; a convicted employee is also liable to dismissal from service and to be debarred from working directly with children, section 82(1) and (2).

7. What is the effect of section 85? Where any offence in Chapter IX is committed on a child who is disabled as certified by a medical practitioner, the offender is liable to twice the penalty provided for that offence.