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POCSO Trials: The Ways Are Not Wanting

POCSO Trials: The Ways Are Not Wanting
A girl holds a placard during a protest against the rape of an eight-year-old girl in Kathua/Photo: UNI
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Above: A girl holds a placard during a protest against the rape of an eight-year-old girl in Kathua/Photo: UNI

In an astonishing endeavour, a court in Auraiya, UP, gave a judgment in a record nine days from the date of filing of the charge sheet in a rape case. This shows that the judiciary can triumph over proverbial delays 


By Prof Upendra Baxi

It is normal human tendency to paint the world black. We all know the maxim that bad news travels fast whereas good news slowly sinks in. But we rarely realise that good news matters a great deal, especially for violated victims and the perpetrators of violent crimes against vulnerable sections of society who are globally increasing.

The good news is that the Protection of Children from Sexual Offences (POCSO) Act, enacted in 2012, with the efforts of law reformers, civil society campaigns, activist justices, progressive public opinion, enlightened governance institutions and Parliament, has actually made a difference. In fact, a special court in Auraiya (UP) awarded a conviction and sentence under the POCSO Act and remarkably, the police submitted a charge sheet within 20 days of the complaint whereas the Act grants an outer limit of one year from the date of cognizance to completion of trial. This goes to prove that where there is a will, there can always be a way to do a good deed.

Under POCSO, for the first time in India, specific offences against the child (defined as a person under the age of 18) were enunciated: Penetrative sexual assault (Section 3), aggravated penetrative sexual assault (Section 5), sexual assault (Section 7), aggravated sexual assault (Section 9), sexual harassment of the child (Section 11) and the use of a child for pornographic purposes (Section 13). These multiple aggressions are precisely delineated and extend to a wide variety of individual and collective activities.

Under the Act, an offence is aggravated when committed by a person in a position of trust or authority such as the police/army/security personnel, public servants or family members, persons in management or staff of educational, medical or religious institutions and those in the management of staff of jails, remand homes, protection homes, observation homes or any other place of custody, care or protection. In other words, institutions and instructions of captivity are no longer beyond the constitutional gaze.

Offences against the child (under 12 years of age) are also declared “aggravated” in situations of gang assault, grievous hurt, taking advantage of a child’s mental or physical disability and such offences committed more than once under this or any other law. Equally noteworthy is the creation of an offence committed in the course of communal or sectarian violence. Most crucial is the fact that the burden of proof shifted on the accused in case of serious offences (Section 3, 5, 7 and 9).

It is good news, indeed, that further amendments providing enhanced punishments stood enacted in 2019, though there is much debate (even among the abolitionists) as to whether capital punishment should have been introduced for such offences.

It is also good news that academic research has contributed somewhat to better enforcement of POCSO justice. A National Law University, Delhi, (NLU-D) report in 2016 explicitly adopted the definition of “child-friendly justice” which the Guidelines of the Committee of Ministers of the Council of Europe (2015) stipulated—“the ingredients of child-friendly justice before, during and after judicial proceedings”. The Guidelines, in particular, summoned justice that is “accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity”.

The NLU-D report rightly stresses that the POCSO Act, in effect, crystallises the obligations of “speedy trial as well as modified procedures to cater to the special needs of children”, though it “is left to individual judges to ensure that children are dealt with and questioned in an age-appropriate manner”. It makes a series of recommendations to improve the realisation of child-friendly justice process and delivery. And it is well-known that Justice Gita Mittal (then in the Delhi High Court) implemented and herself urged several measures in this direction.

But it was left for the Supreme Court to add to this POCSO legislative hurricane some new directions for better implementation of the Act. Chief Justice Dipak Misra (along with Justices AM Khanwilkar and DY Chandrachud), asked all High Courts in 2018 to ensure that cases of sexual assault of children are fast-tracked and decided by special courts.

It also asked them to ensure that the proceedings in such cases are conducted in a “child-friendly” atmosphere in courts. The bench further directed the High Courts to set up a three-judge committee to monitor and regulate the trial of cases under the POCSO Act. The directions proved judicially inevitable as 1,12,628 cases under the POCSO Act were pending before trial courts across the country, with Uttar Pradesh leading the list at 30,883.

Much has been said about proverbial judicial delays that a great credibility gap arises when judicial expedition happens. It does more often, but is rarely and sadly considered newsworthy in a news and views culture that regards only the abnormal as newsworthy.

But Live Law, fortunately, found it newsworthy to report a judgment (in Hindi) of a special court in Auraiya which awarded a conviction and sentence under the POCSO Act that was truly swift—the police submitted a charge sheet within 20 days of the complaint whereas the Act grants an outer limit of one year from the date of the cognizance to completion of the trial. In a learned judgment, Judge Rajesh Chaudhary, examining all points raised by the defence, ruled that the four-year girl was a competent witness, that her evidence alone may be considered sufficiently reliable to convict the accused as the statutes, codes and criminal law, as frequently reiterated by the Supreme Court, do not prescribe a determinate number of witnesses in sexual assault cases. Nor was there any proof for other motives produced by way of direct testimony of witnesses, and the indictment of a conspiracy to frame the accused was duly dismissed.

In sentencing, the judge noted the young age (19 years) and avocation (farm-labourer) of the accused and registered all the arguments for a minimal sentence. But relying on the Deepak Rai (2013) decision of the apex court, it declined the minimal sentence argument and followed Najab Kahn (2013) where the Supreme Court held that the sentencing court should bear in mind two factors, transcending the individual conduct—the societal impact and “restoration of social equilibrium”.

What may happen in terms of mitigation of sentence at the High Court or the Supreme Court level or later how may the convict get the benefit of parole or remission is a matter not focused in this article. Obviously, those engaged with reformative aspects may find the punishment in this case too harsh, but those concentrating on the harm done to the victim and society may take a different view.

The simple fact to be highlighted here is that while attending carefully to the various arguments, pro and con, a reasoned judgment was delivered in a record nine days’ time from the date of filing the charge sheet. This is a truly astonishing endeavour at child friendly justice. It shows that a will to justice can flourish even within a legal system accustomed to leisurely and lengthy proceedings and arguments, prolix adjournments and much delayed outcomes. There is also a larger message: coordinated efforts of the state, civil society, and judiciary can find ways to triumph over the proverbial delays in the administration of justice. As the old saying goes: “Where there is a will, there is a way.” Or to put it somewhat differently: for a person that wills, “ways are not wanting”.

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer

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