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Written by Swagata Raha and Shruthi Ramakrishnan I The Indian Express I December 25, 2015
Drastic legislative measures in response to the spike in sexual crimes against children distract public attention from executive and judicial failures to ensure justice for child victims
The responses from different parts of the country to recent incidents of child sexual abuse have been identical in their demand for higher and more stringent punishment. While the Delhi chief minister wants to consider legal reforms to enhance the punishment for the rape of minors and treat juveniles over 15 involved in rape and murder as adults, the Madras High Court recommended castration of offenders found guilty of child sexual abuse. These hasty responses, however, completely overlook and distract public attention from the utter failure of the executive and judicial machinery to ensure justice for child victims.
It has been nearly three years since the Protection of Children from Sexual Offences Act, 2012 (Pocso Act) was passed in an effort to address growing rates of child sexual abuse and poor rates of conviction. The act provides for the establishment of a special court, appointment of special public prosecutors (SPPs) and compensation, and specifies timelines for recording evidence and completing trial as well as child-friendly procedures to be followed during investigation, evidence-recording and medical examination. It also provides for several care and protection measures for victims. In a marked departure from established principles of criminal law, the Pocso Act prescribes a presumption of guilt in serious offences. The act also enhances the punishment for such crimes, stringently imposes long minimum sentences and affords no discretion to the special court to impose lesser punishment in cases of serious crimes such as penetrative sexual assault, aggravated penetrative sexual assault, sexual assault and aggravated sexual assault. The law further clarifies that in cases where an act is a sexual offence under the Indian Penal Code and the Pocso Act, the higher punishment must be imposed.
Despite such dramatic reforms, “Crime in India 2014” reveals that the conviction rate under the Pocso Act is a measly 24.6 per cent and the pendency rate is an alarming 95.1 per cent. This barely inspires confidence in the criminal justice system that is projected as the panacea for crimes against children. While the Delhi chief minister proposes law reform to further enhance the punishment for such crimes, the data shows that this strategy has not worked. Rather than resorting to drastic legislative measures, this issue clearly calls for a reassessment of the working of the justice system.
The Centre for Child and the Law at the National Law School of India University, Bangalore is currently studying the functioning of special courts established under the Pocso Act in five states, including Delhi. While the findings are being processed, the qualitative data reveals several problems in the implementation of the act that negatively impact the outcomes in these cases.
First, the special courts for trying these cases are seldom “special”. Instead, they are regular sessions courts that also try offences under anti-terror laws, narcotics laws, etc. The judges assigned to these special courts in Delhi are expected to maintain a child-friendly atmosphere within the courtrooms — while simultaneously dealing with alleged hardened criminals charged under draconian laws. At a practical level, judges find it difficult to switch from one mindset to another.
According to most NGOs and private lawyers representing children, the atmosphere in court is far from child-friendly. Though the act prohibits the prosecutor and defence lawyer from questioning children directly — only the judge is allowed to ask the child questions — this is rarely followed. There is virtually no training on child psychology, appropriate methods of questioning children, or maintaining a child-friendly atmosphere.
Preliminary data from the analysis of trials in Delhi reveals that, in a majority of cases, the victims and witnesses turn hostile due to the sensitive nature of these cases, and threats and intimidation. In one case, the examination of the child was conducted on two different dates one month apart (State vs Mohd Azeem Khan). While the victim supported the prosecution’s case in her first deposition, she turned hostile on the second date. The court did not examine whether any threats or pressure had been applied by the accused, and promptly acquitted him.
According to Section 32(1), the state government should appoint an SPP to exclusively handle Pocso cases. The directorate of prosecution, Delhi, has, however, assigned an additional public prosecutor (APP) for each of the 11 special courts that deal with all criminal matters. Hearings are often rescheduled because of the unavailability of the APPs. The Delhi government should consider making funds available for the appointment of SPPs and organise trainings for them.
The Pocso Act also requires the courts to deploy translators, interpreters and special educators wherever necessary, and it is the duty of the executive to make this list available to courts and ensure adequate funding. In one case in the Saket court in Delhi, the accused was made to stand right behind the victim and translate for her because a translator had not been arranged. It was the presence of the support person that gave the 14-year-old victim the courage to testify confidently. These incidents give rise to concern about the damaging psychological effects they could have on child victims. It is no wonder that a majority of victims and key witnesses turn hostile and don’t testify against the accused.
Special courts discourage compensation applications and ask representatives of victims to approach the Delhi State Legal Services Authority, which in turn directs them back to the court. In several cases, courts have waited till the evidence is recorded to see if the child supports the prosecution even though the child may be in need of money for urgent medical procedures.
Proponents of stricter penalties should bear in mind that higher sentences have invariably resulted in more acquittals. The minimum sentences under the Pocso Act are considered prohibitively high. For instance, some within the legal fraternity feel that a three-year sentence for a 22-year-old boy for forcibly kissing a 17-year-old girl is disproportionate, and would rather acquit the accused. Since the accused is invariably known to them, children and their families often buckle under the burden of putting someone away in prison for a lengthy period of time.
The J.S. Verma Committee consciously rejected the death penalty for sexual offences as well as the lowering of the age of the juvenile, given the credible research that showed the poor deterrent effect and counterproductive outcomes of these measures. While the legislature has done its bit, the executive and the judiciary have to join hands to ensure the effective implementation of the Pocso Act. The Delhi government should consult with stakeholders, particularly children and their families, instead of proposing draconian measures that contradict the Indian Constitution, international standards and the parliamentary standing committee report on the Juvenile Justice Bill, 2014, and make justice more elusive for our children. The higher judiciary should also identify the root causes of acquittals and ways in which the child-friendliness of special courts can be enhanced.
The writers are legal researchers with the Centre for Child and the Law, NLSIU, Bangalore