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With child rapes on the rise, the apex court has taken suo motu  cognisance and decided to frame guidelines to deal with it, while the cabinet has given its nod to amending the POCSO Act

By Papia Samajdar

If one goes by statistics, India is no country for children. Shocking figures regarding abuse and rape of children have brought to the fore the importance of protecting our youngest and weakest from prowling predators.

Studies indicate that about 18-50 percent of the population might have experienced some form of sexual abuse in their lifetime. This does not include instances of cyber sexual exploitation, which accounts for one out of five children. Most go unreported.

Taking suo motu cognisance of the “alarming rise” in instances of child rape, the Supreme Court on July 12 decided to frame guidelines to deal with them. A bench of Chief Justice of India (CJI) Ranjan Gogoi and Justices Deepak Gupta and Aniruddha Bose appointed senior advocate V Giri as amicus curiae and asked him to assist in framing guidelines in this regard for states pertaining to infrastructure and video recording of the proceedings.

The CJI also said that 796 child rape cases were registered in the past six months (January–June) in Delhi alone. But only two had been disposed of. “If this is the case with the national capital, what will be the situation in other places?” he asked Giri. The CJI added: “Look at the disposal rate in Delhi—only two cases between January and June this year. This is the state of affairs in the national capital despite state-of-the-art facilities. Delhi is the place where people are expected to be sensitised in the best possible manner. But if this is the ground reality here, we must find a solution fast rather than stressing on the problem.”

The government, on its part, notified the Protection of Children from Sexual Offences (POCSO) Act in 2012. The Act aims to protect children from sexual assault, sexual harassment and pornography, as well as set up special courts for trials under this Act. The Act also promotes mandatory reporting and holds a person an offender in case of non-reporting. The Act also makes the police more accountable.

The National Crime Records Bureau (NCRB) started recording the number of sexual offences under POCSO only from 2014. According to NCRB data, child rapes more than doubled during 2012-16 from 8,541 to 19,765—with 55 percent involving penetrative sexual assault. However, the NCRB changed its methodology for data compilation and computation of sexual crimes against children from 2014 and duplication of data was taken care of only in 2015.

In 2016, a total of 64,138 child sexual assault cases were under trial across the country, which included 26,893 cases from the previous years. Only about 10 percent of these were disposed of. According to the Department of Justice under the law ministry, an additional 1,023 special courts need to be set up to try rape cases involving women and children in a timely fashion. The document, prepared by the ministry in 2018 and presented to the home ministry, pegs the expected expenditure for these courts at Rs 767.25 crore.

As the number of cases involving child sexual abuse shows no signs of abatement, the government amended its laws to increase the severity of punishment to include the death sentence. The Criminal Law (Amendment) Ordinance passed in August 2018 sought to amend the IPC and the POCSO Act to include stricter punishment. The Ordinance imposed a maximum sentence of the death penalty for rape and gang rape of girls below 12 years. For gang rape of girls below 16 years, it imposed the minimum punishment as life imprisonment. It also reduced the investigation time of all rape cases to two months. It barred anticipatory bail in case of rape of minor girls below 16 years.

Under POCSO, the punishment for rape of a child below 12 years is the same irrespective of the gender of the child. However, the minimum punishment for rape of a male child aged 12-18 years is seven years, while the minimum punishment for rape of a girl aged 12-16 years is 20 years while for girls aged 16-18 years it is 10 years.

The stricter penalisation, however, is yet to show results. According to data compiled by the registry on the order of the apex court, a total of 24,212 FIRs related to child sexual offences were filed in the first six months of 2019 itself. But trials have begun only in 6,449 cases, with 4,871 cases yet to reach the trial stage and 11,981 cases still under investigation. Judgment has been given in only four percent of the cases by trial courts. Uttar Pradesh filed 3,457 cases of child abuse, the highest, followed by Madhya Pradesh with 2,389 and Rajasthan with 1,992. The lowest was recorded by Nagaland—nine FIRs. In Delhi itself, 6,414 cases under POCSO are pending as of May 16, 2019.

To show that it is serious about curbing sexual violence against children, the cabinet gave its nod to the proposed amendments to the POCSO Act on July 10, 2019. The amendments propose to further tighten the sentence awarded to perpetrators, with the death penalty as the maximum punishment. It increases the minimum sentence for penetrative sexual assault to 10 years from seven years. If the child is below 16 years, the accused can be punished with imprisonment for 20 years to life along with fine.

Also, the definition of aggravated sexual assault has been enhanced. Earlier, the act was defined as when a person touches the vagina, penis, anus or breast of a child with sexual intent without penetration. It is now proposed to include “assault committed during a natural calamity” and “administering any hormone or any chemical substance to a child for the purpose of attaining early sexual maturity”.

Experts are, however, sceptical about introducing the death penalty as a deterrent to rape. According to Bharati Ali, director of HAQ, an NGO working for child rights: “Many of us have resisted the introduction of the death penalty for child rapes. Firstly, in cases where rape is combined with murder, the offence automatically falls in the category of those that can be punished with a death sentence. The question then is whether child rape by itself can be addressed with stringent punishment, including the death sentence. Unfortunately, statistics do not support such a move. Around 70 percent of rape cases involve romantic relationships, where the parents of the girl want to punish the boy/man she eloped with and/or married. These cases do not deserve such punishment. The second highest category of rape cases are of incest. Most of these cases end up in acquittals as the victims turn hostile. In other cases where a full trial takes place, the evidence is often poor.”

The Justice Verma Committee, constituted after the Nirbhaya case, had said that punishment should be proportionate to the crime. In the case of rape, it had supported life imprisonment but not death. As it is possible to rehabilitate the survivor, the death sentence is not a proportionate punishment.

One of the biggest hurdles in getting justice for child victims is the low conviction rate resulting from delays during trials. The conviction rate has only marginally improved from 16.33 percent in 2014 to around 20 percent in 2017. An analysis by National Law School, Bangalore, which reviewed 667 judgments from 2013-15, pegged the main reason behind low conviction to “victims turning hostile”. As much as 67.5 percent of the child rape victims turned hostile during the trial, according to their study.

In Delhi, the conviction rate of cases under POCSO was an abysmal 16.33 percent in 2014, which increased to 18.89 percent by 2016. Prosecutors at Tis Hazari Court blame the long-winded legal process which gives the accused ample time to pressure the victims into dropping the case. Further, where the accused is a family member, convictions are hardest to come by. With POCSO safeguarding minors against perjury, the instances of them changing their testimonies are uncurbed. “The investigating officers are also not trained adequately and are overburdened with a myriad other duties and face a huge challenge in terms of collection, storage and examination of forensic evidence resulting in a substantial number of acquittals,” added Ali.

Studies indicate that 50 percent of sexual offences are committed by family members. Sadly, 80 percent of other family members or caretakers had knowledge of these offences. According to a study by HAQ, an average of 76 percent of the accused were known to the victims. Another study in 2016 by the Kerala State Commission for Protection of Child Rights to understand the reason for low conviction rates showed that in nearly 50 percent of the cases, the accused was known to the victim and was in a position to influence her. Understanding the magnitude of the problem is further complicated by the unreliability of data, lack of standardised information and duplicity of data.

According to HAQ, 95 percent of the victims of child sexual abuse were girls. The study also showed that though children from disadvantaged backgrounds were more susceptible to abuse, under-reporting in middle- and upper-income classes was prevalent.

Another challenge which comes in the way of providing justice to the victims is the way their statement is recorded. This can lead to discrepancy between the FIR, the statement under Section 164, CrPC, and the child’s testimony in a special court. Most often, the police prefer registering the cases under the IPC which is more familiar to them than POCSO. Both these scenarios can complicate the trial.

However, Ali said that proper implementation is wanting on all fronts. “None of the standards laid down under POCSO for victim protection and child-friendly procedures are fully met by any agency, including the courts. Amidst such glaring gaps, introduction of the death penalty is nothing short of a political gimmick. Moreover, nowhere in the world has the death penalty for rape been a deterrent or reduced such incidents. On the contrary, the accused tend to wash off the evidence by killing their victims,” she said.

According to experts, speedy trials are a key to ensure a higher rate of conviction. “In addition, there should be a supportive and enabling environment for the victim to report the crime on his or her terms, a sensitive criminal justice system which includes courts, legal aid and police and rehabilitation,” said Ananth Kumar Asthana, an advocate of child rights.

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