Guest post by SRISHTI AGNIHOTRI and MINAKSHI DAS
On the 30th of November 2015, Shri Rajiv Chandrashekhar, a Member of Parliament, spoke at an Open House on ‘Why we need to start talking about Child Sexual Abuse and protect our children’. With the enactment of the Protection of Children from Sexual Offences Act in 2012, and rising awareness among civil society groups, there is an unprecedented momentum regarding protecting our children from sexual abuse. Issues that were earlier being brushed under the carpet, are now being openly addressed. We thought this was a good time to talk about the progress of the POCSO Act. Has it lived up to its promise? What more do we need to do to make this legislation effective in the fight against sexual violence?
The Protection of Children from Sexual Offences Act (‘POCSO Act’) was enacted in the year 2012 with the aim to protect children from sexual offences, such as, sexual assault, sexual harassment and pornography. This Act also provides for the establishment of special courts for trial of child sexual abuse matters. In the past decade, India has recorded an alarmingly high level of sexual assault cases on children. While, the Government of India has made a sincere attempt to address the issue of sexual exploitation of children through the POCSO Act, the impact of the legislation remains to be seen.
Although the POCSO Act contains a mechanism, well equipped to handle cases of child sexual abuse, its implementation has been mired in malpractices and outdated legal proceedings. It is imperative to conduct a critical empirical assessment of the implementation mechanism envisaged under the POCSO Act. This article is a step in that direction. Such an article will help to assess the effectiveness of the Act, identify the implementation gaps, and suggest policy recommendations to plug these gaps. An example of the implementation gap is the fact that there are a total of 200-600 cases of sexual offences pending in each of the designated courts in the capital. Further only two of the District Court complexes have a vulnerable witness room, for the recording of evidence of child witnesses.
A brief understanding of National Crime Records Bureau Report of 2014 will help us analyse the states that require immediate attention and focus on states that are under reported, as this could be due to various reasons like unawareness of POCSO act, afraid to open up to civil societies or no help received on the day of occurence. A total of 8904 incidence and 8990 victims were reported from 29 states and 7 Union Territories under the Protection of Children from Sexual Offences Act. Out of which Uttar Pradesh under the POCSO Act stood highest with 3637 number of incidences and victims. The graphs herein below will help us analyse the states that had highest number of cases registered under POCSO (Please also refer to Table 6.2 of the NCRB Crime in India report of 2014) Although there could be a number of reasons/factors that can lead to under reporting or over reported. However, it is important to act upon states that have actively registered and acted upon in reporting child sexual abuse (UP, Tamil Nadu and West Bengal).
The graph below represents the total number of incidences and victims that were registered in the year 2014 under POCSO in all the 7 Union Territories. Child Sexual Abuse reporting is on a rise in the capital with 107 and 109 incidences and victims reported respectively.We have to understand that NCRB has a number of limitations while calculating data for formulating the Crime statistics in India. The numbers and figures to measure crime rate are calculated as provided by Demographic Division, Registrar General of India (RGI) and the Ministry of Home Affairs (MHA). Hence, no private agency or organs participate in determining the crime statistics. It is purely on government organs and their mode of registering the cases. In addition, the reason for high reporting could be due to a number of reasons like general awareness and lowering of stigma attached to child sexual abuse.
Turning now to the scope of this article, we aim at doing a three pronged analysis of the progress of the POCSO Act so far. This analysis will be from the legislative, judicial and administrative perspective. Before going further, it is important to note that child sexual abuse may be committed by anyone, irrespective of age, gender ethnicity or educational/income profile. The victim of the sexual abuse, may come from any strata of society and may belong to either gender. However, when the abuser takes advantage of other vulnerabilities suffered by the child, such as poverty, migrant status, or disability, he causes a double victimization. Children who face economic and social vulnerabilities, have a harder time accessing the criminal justice system, and tend to have a more painful interaction with it once they do get access. For example, children with disability are entitled to the presence of a special educator or someone familiar with their method of communication during the recording of their statement under Section 164 of the Criminal Procedure Code. The authors, in their experience, find that this provision is not always complied with. Moving on to our three pronged analysis, let us look at the legislative process.
The Legislative Process
The POCSO Act 2012, is a historical legislation as it defines offences of sexual assault, sexual harassment, pornography and safeguarding interest and well-being of children. It also lays down a child friendly procedure regarding the recording of evidence, investigation and trial of offences, establishment of special courts and speedy trial of cases. The aim of the Act is to provide protection to the child at every stage of judicial process.
Although, upon a preliminary reading, the POCSO Act may qualify as the ideal legislation to protect children from sexual offences, there are certain conceptual problems in it. For example, the Act does not give any room to the idea of consent given by persons under 18. This would mean that if a seventeen year old boy or girl had a nineteen year old sexual partner, the partner would be liable to be booked under the provisions of the POCSO Act. The Act also does not provide any clarity on what happens when two minors engage in any kind of sexual activity. Technically, they are both Children in Need of Care and Protection (CNCP) and Children in conflict with law (CCLs). In practice though, the police declare the girl children to be CNCPs and the male children to be CCLs.
Another problem is faced by the victims in proving the age of the child. Since the POCSO Act is silent on what documents are to be considered for determining the age of the child victim, the provisions of the Rule 12 of the Juvenile Justice Rules has been read by Courts as applying to child victims as well. This Rule, recognizes only the birth certificate, the school certificate of the child, or the matriculation certificate. However, children who are able to produce other documents such as a voter id card, or a passport even, have to undergo a bone ossification test. This test can give a rough estimate of the age of the child at best. Further it is not clear whether the provisions of Rule 12, that provide for a benefit being given to the child in case the bone ossification test cannot make an exact assessment of age, apply to a child victim under the POCSO Act. There needs to be a clear provision in the POCSO Act that lays down what documents should be considered for proving the age of the child, and whether the benefit should be given to the child if the ossification test cannot do an exact assessment.
Judiciary and Delivery of Justice
One of the cornerstones of the POCSO Act is its mechanism to provide speedy justice to children who are victims of sexual assault. However, many serious institutional bottlenecks affect the legal protection of children below the age of 18 years.
An obvious example is the timeline for child testimony and conclusion of the trial laid down in Section 35 of the POCSO Act. Section 35 requires the child testimony to take place within a month of the taking of cognizance by the Court, and the trial within a year of the same. However, these provisions are more often flouted than complied with, because of the manner in which our courts are overburdened.
A related issue is the tendency of the lawyer’s to take adjournments or adjournments caused due to external factors such as strikes in Court. In such situations, the victim ends up getting called repeatedly to court, to testify. It may also happen, that a child victim is given a next date of hearing six or seven months afterwards. This reduces the chance of her being able to recollect the facts of the incident accurately.
Interim compensation is another important issue. The child victim is entitled to interim compensation to meet her immediate needs, for the purpose of her rehabilitation. However, it is necessary for all stakeholders to understand that interim compensation should not be restrictively interpreted to mean only his or her medical needs. It includes every need of the child that will help with her rehabilitation.
Under Section 33 (2) of the POCSO Act, the Special Public Prosecutor while recording the examination-in-chief, cross-examination or re-examination of the child, should first communicate the questions to the child to the Special Court and then those questions should be put to the child. The child should also be given frequent breaks between questions.
The role of the lawyer for the child is also pivotal. The mandate of the lawyer for the child, is to assist the prosecution. This will require proper coordination between the Pubic Prosecutor and the child’s lawyer. Further, in our adversarial justice system, while the Public Prosecutor and defence lawyer have well-defined roles. There needs to be an examination of how the lawyer for the child victim, fits into this scheme.
We are trying to achieve the ambitious goals of the POCSO Act, through a police force that is overworked. Despite their best efforts, the police faces a lot of barriers in conducting a proper investigation in POCSO cases.
It begins with the registration of the FIR. The police must ensure that there is no delay in the registration of the FIR, and the conducting of the MLC.
The MLC of the victim is often times not conducted as the victim’s family is given inaccurate information on the long term ill-effect of the MLC on the child’s health. When the child has to go for an MLC or an abortion, he or she often faces a hostile atmosphere in the hospital. Doctor’s need to be sensitized on how to communicate with the child about what he or she is going through. An abrupt bedside manner or violation of the child’s privacy ends up traumatizing the victim.
The FSL samples taken by the police often end up getting contaminated, or putrefied due to improper storage. The police need to be acquainted with the best methods of collecting forensic evidence, so that the appreciation of the evidence can take smoothly during the trial.
Under Section 43-44 and Rule 6 of POCSO Act institutions such as the NCPCR and SCPCR are required to monitor and evaluate the implementation of the Act on a regular basis in addition to generating public awareness to the provisions of the Act. However, the functioning of such departments and their M&E procedures have not been open to public scrutiny. To this extent, it is imperative to study the procedures established by such bodies and evaluate the effectiveness of the same in generating impactful outcomes.
In conclusion, the progress report of the POCSO Act gives mixed results. While the mandate of the legislation is truly radical in that it aims to protect children against sexual abuse, and provides for a victim sensitive criminal justice process, there are several snags in its implementation. Our three pronged analysis shows what creases need to be ironed out, but this will be possible if we keep ‘talking about child sexual abuse’. We are at a time in our country’s history, where serious open discussion on child abuse can and is taking place. We need to use this momentum to make lasting systemic change; for our children, it is the least we can do.