By Mustafa Haji
Recently India made world news with the introduction of the death penalty for child rapists.
It is unfortunate how it takes tragic incidents such as rape of minors to remind us that the laws of the country need serious reconsideration. The last time a major overhaul in the rape law was thought of was as a consequence of the Nirbhaya rape case and before that the Vishaka incident when the law on sexual harassment was brought in. These steps illustrate the reactive approach to law making that seems to be a pattern we are all too familiar with.
Such reactionary changes to the law resulting from public pressure and outcry are problematic in themselves, as they are devoid of basic research and thoughtful analysis which are critical to good law making. The ineffectiveness of reactionary law making can be seen in the recently proposed amendments in the Criminal Law and the Protection of Children from Sexual Offences Act (POCSO), 2012, that were a result of the Unnao and the Kathua cases that shook the country’s conscience.
The new reforms that have been proposed to the Indian Penal Code, which shall further apply to the POCSO are:
- If a person rapes a minor girl who is below the age of 12 years then the punishment shall be rigorous imprisonment of at least 20 years which shall be extendable to life imprisonment, along with fine or death. Previously the punishment for the same was rigorous imprisonment for at 10 years or life imprisonment, along with fine.
- If a person rapes a girl who is below 16 years, then punishment would be rigorous imprisonment of at least 20 years, extendabletolife imprisonment, along with fine. The punishment for this as per the 2013 criminal amendment is rigorous imprisonment, not less than 10 years and which may extend to imprisonment for life.
The Ordinance has suggested a few more changes, such as time-bound investigations, appeals and prior sanction from the courts for prosecution of government services in the Criminal Procedure Code 1973 and however, the main change it suggests is in introducing death penalty as a punishment for rape of minor below the age of 12.
The major problems with the POCSO Act are:
No monitoring of the enforcement of important provisions
A major provision in the POCSO is that of Special Juvenile Police unit, apart from the usual local police, in charge of investigating cases of child abuse. This was conceived of as a protection from Police intimidating children either intentionally or unintentionally. Yet, no mention of a special juvenile police unit can be found in many cases. Similarly, there are various provisions for the security and the care of the victim under the POCSO, such as:
· The statement of a child should be taken at the residence of a child or a place where he or she is comfortable, by a lady police officer.
· The Police should ensure that at no point the child should come in contact with the accused so that the victim does not get scared.
· The Police should ensure that the identity of the victim is protected from public and media
· Special Courts for the child abuse cases
· Medical examination and compensation to the victims among various other safeguards.
While these security measures are noted in the Act itself, there’s massive oversight when it comes to the enforcement of these measures. In the Kathua case, for instance, the name of the victim was highlighted and essentially advertised on all the media channels even though this is strictly prohibited both under the POCSO Act as well as the Indian Penal Code under section 228 A.
Procedural complexities draw out the conviction, delaying justice
The delay in the case disposal and the complexities of the procedures, in general, are other major loopholes in the POCSO Act. As per the National Crime Record Bureau report of 2016, 89% of the cases under POCSO are pending before the courts. Similarly, the rate of conviction under the POCSO act is dismal. According to the reports of the NCRB, the conviction rate is as low as 20–30 percent. The justice delivery system does not prioritise child sexual abuse with the intent of dispensing justice swiftly.
A threat of harsh punishments can lead to hostile victims
The NCRB data reveals that in more than 96 % of child sex abuse cases, the perpetrator is a close relative or a member of the family. This is why children often find it difficult to confess. Parents who have been alerted to this, often try to resolve it themselves due to the stigma that is associated with such crimes and what it would do to the family reputation. This can result in many victims turning hostile during the trials. Harsher punishments for the perpetrator can quickly become harsher threats for the victim, as the accused may go to any extent to protect themselves. Worried for their own safety, children may choose not to provide testimony or disclose any details, bringing the case to a halt.
It is not victim-oriented
The crimes against children are one of the highest in the country and ironically child abuse is one of the least reported crimes. For the POCSO Act to be effective in protecting children who are sexually abused, it should go beyond relying on harsh punishments to be a deterrent. It should focus on stricter enforcement of protections for the abused children, punish half-hearted investigations, do away with intimidating procedures and improve overall sluggishness in the manner the law is implemented.
Justice is more than a punitive knee-jerk reaction to the perpetrator of injustice. The child abuse law as it stands has multiple problems mostly stemming from its focus on the abuser. It’s important to look at the systemic failures that allow child abuse to happen, prevent children who are abused from speaking up and reporting it. Punishment alone is not a complete solution by any means. We need to fix the larger issues at hand by making laws that protect children from being abused, protect those who are abused, encouraging them to come forward and report it, as well as, adapt justice procedures to make it more child-friendly to support and reassure those who attempt to seek justice that they themselves won’t get hurt anymore in the process.
