Five years after 2012 act made penalties severe, clearly defined crimes and set tighter deadlines, thousands of children are still waiting for justice
MUMBAIFarhan Shaikh
Hindustan Times
The law says: All child sexual abuse cases in court should be tried in a year.
What is happening? Courts in 2017 are still hearing cases from three years ago.
The law says: A child need not go to the police station to file a complaint, a woman officer dressed in plainclothes must take her statement and the Child Welfare Committee must give her a ‘support person’ to take her through the probe and trial.
What is happening? Support systems are weak, children are left reliving the trauma of abuse, victims as young as six and seven are facing intimidating police officers and in many cases, attackers are forcing the child or her family to take back the complaint.
In 2012, India enacted the Protection of Children from Sexual Offences Act — a stringent law to protect children from sexual offences.
It made penalties and punishments severe, defined more clearly the types of crimes and set tighter deadlines for probes and trials. But five years on, thousands of cases are still pending in court and the law has failed to grow into a strong enough deterrent to stop sexual attacks on children.
Number trouble
According to the latest data available (National Crime Records Bureau ,2014-15), there were 7,956 cases from 2014 yet to be tried in court. In 2015, another 12,980 cases of child sexual abuse reached the courts — that’s 20,936 cases of children waiting for justice.
However, by the end of that year, 18,879 cases were still pending.
The number of such cases still waiting to be heard will be far more today, two years later. Take the example of this court in Mumbai. In 2017, a city sessions court delivered judgments in three cases from 2013, 21 cases from 2014, one case from 2015 and two cases from 2016.
According to the advocates fighting these cases, every special court takes at least two to three years to finish a trial.“There are few judges in the courts. The lower judiciary functions with a strength of just 50% of judges, while the higher judiciary functions with the strength of 60%. Considering Mumbai’s population, there should be at least 130 special courts to handle these cases,” said senior advocate Satish Maneshinde.
WHAT IS THE LAW?
The Protection of Children from Sexual Offences Act, 2012, or POCSO, makes any case filed under it cognisable, non-bailable and to be tried by a sessions court within a year
The proof of crime and the child’s statement must be taken within 30 days of a special court taking cognisance of the offence. If there are delays, the court must record why
The child should never come in contact with the attacker while testifying. All trials have to be ‘in-camera’, and the child’s parents or the person in whom the child confided should be in court
The effect of delay
Social activists working with sexually abused children said POCSO was not being implemented the way it should be and this was causing the delays.
“There are huge gaps in the implementation of the Act. When there is a delay in the court hearing cases, the accused may get out on bail, or the victims, who are often poor and vulnerable, move homes and are not available to depose before the court. Sometimes, the accused and victim’s family reach a settlement and the case is retracted. If courts could finish a victim’s deposition within a month of the charge sheet being filed, it would relieve her of the tension and she can go about her life,” said Audrey D’mello, programme director, Majlis Legal Centre.
Not the only hurdle
False cases and people misusing the act were also causing delays, social workers said.
In one case, the Dindoshi sessions court gave bail to a driver from Malwani who had spend 11 months in custody — after the woman, his niece, admitted in court that she was not a minor. The Malwani police had registered a molestation case against the man in March 2016, but filed a charge sheet without attaching proof of the woman’s age. They claimed the girl did not provide it to them.
WHAT ARE THE PUNISHMENTS?
Penetrative sexual assault: Offenders get at least seven years in jail. Depending on how heinous the assault was, the court can decide to send the accused to jail for life, and ask them to pay a fine
Sexual assault: Which includes all forms of sexual attacks where there is no penetration —touching, groping, asking the child to touch. The law sanctions a minimum three years in jails and a maximum of five and fine. In severe cases, a minimum of five and maximum of seven years in jail and fine
Pornography: If a child was forced to appear in pornographic films and material, the offenders will get a maximum of five years in jail and fine. Repeat offenders get between seven years and life in jail
Mandatory reporting: Any person the child has confided in is obliged to report the abuse. Not doing so can get the person six months in jail, or fine, or both Company/institution fails to report: If a school, college does not report sexual abuse, even after a child brought it to their notice, those responsible can be sent to jail for a year and be fined
EXPERTS SAY
While today, court infrastructure has improved slightly and victims depose in-chamber, we still see a lack of sensitivity among judges who carry preconceived notions of what is a ‘genuine’ and ‘false’ case based on their own biases. There are huge gaps in the implementation of the Act in its letter and spirit.
AUDREY D’MELLO, programme director, Majlis Legal Centre
In another case, a false complaint was filed by a brother over a personal dispute. “Two brothers had some issue. One of them alleged that his brother molested his minor daughter. We had to register a case under POCSO as the law compels us to do so,” said a Mumbai police officer.
Solution: make it work
For India’s 675 districts, there are 604 special courts that can try POCSO cases, according to the National Commission for Protection of Child Rights (NCPCR).
If the 20,936 pending cases are shared by these 604 courts, each court would have to hear just 34.66 cases in a year.
The problem is, it only sounds possible on paper.
“Once the matter is in a court of law, there are several reasons and circumstances that delay the trial. In many cases, while the court is willing to dispose of the trial in the given time, it gets delayed because of reasons such as the witness not appearing, or poor manpower,” said advocate Falguni Bhrambhatt.
“There are, however, many courts that have concluded trials and delivered judgments in a year,” Bhrambhatt said.
Several social organisations agree the legal situation is much better today than it was five years ago, before POCSO.
But the change is not consistent and the law is yet to act as a strong enough deterrent.
Thousands of years of cultural pedophilia are not going to be easily broken especially by some poorly applied laws. Much more needs to be done on so many levels from education to cultural penalties beyond prison time. I don't know what that would look like, but maybe you have some ideas?
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