Within two years of the enactment of a special law to protect children from sexual abuse — Protection of Children from Sexual Offences (POCSO) Act, 2012 — the bogie of its misuse is being raised, even while the protective measures stipulated by the Act, such as instituting child-friendly procedures in police station and courts, are yet to take shape.
A news report appeared in a popular daily recently, titled, “Experts caution new law often misused in ‘affairs gone wrong’”. Such articles need to be countered at the initial stage itself, lest the adverse propaganda based on misinformation and inaccuracies gets endorsed as facts by the public and our superior courts. We have seen this happen to an earlier provision meant for protecting victims of domestic violence (Section 498A of IPC). Hence the concern.
The news report in question carries a quote from an unnamed member of the National Commission for Women, alleging that a large number of parents of eloping couples file “false complaints” and this number matches that of false cases filed by “spurned lovers”. This is a sad reflection of the skewed understanding of the provisions of the POCSO Act — both by the reporter as well as the expert from the National Commission for Women.
The Act increased the age of consent for sexual intercourse from the earlier 16 years to 18 years, and thereby criminalised all consensual sexual activity between adolescents. This was done overriding objections from several women’s organisations. Secondly, it introduced the clause of mandatory reporting, rendered non-reporting a crime. This left no option even for a doctor who performs medical termination of pregnancy on a minor, even in cases of consensual sex.
The plea that such a move would result in increasing parental control over adolescent girls and render young boys from lower class, caste and minority communities vulnerable to criminal prosecution fell on deaf ears in the frenzy to implement a stringent law.
And when a case of sexual intercourse involving a minor is reported or comes to their notice, the police too have no option but to register a complaint, even if it is consensual.
When this is the mandate of the law, where is the question of misuse?
It is trendy to project two contradictory views regarding laws aimed at curbing violence against women and children — the need for a stringent law (including death penalty) at one end, and the misuse of the law at the other.
Problems created by lack of foresight while enacting a statute cannot be brushed under the carpet by offering a simplistic theory of “misuse of law”. Instead of lamenting over the misuse, what’s necessary is to prevail upon the government to rectify the problems created by the Act.
But what is alarming is that often reporters and experts choose to take “misuse” of a law to question the basis and the existence of the law itself. The brutal gangrape of a 13-year-old school dropout from a poverty-stricken background by four boys in the age group 19-22 years at a house party, to which the girl was lured into going by her own friend, is the latest case in point. The accused were acquitted for lack of evidence.
The gangrape was as brutal as the Shakti Mills rape case, but it did not receive even a fraction of the media attention. In the Shakti Mills case the “honour of the city” had to be salvaged, hence the investigations were meticulous. But this case was just another routine rape case of a girl from a slum, and hence it fell by the wayside. The investigations were shoddy and no support was provided for the girl.
The girl was hospitalised for six days following the sexual assault. From the hospital she was taken to a shelter home, to provide her a safe environment. The child continued to be in a state of extreme trauma and depression, a fact brought before the court by the counsellor of the shelter home, who interviewed the victim nearly three weeks after the incident. At the shelter home she was assaulted by her friend who was an accomplice in the case and had been placed in the same shelter home as a juvenile offender. Due to this, the girl had to be discharged from the shelter home as it was no longer a safe environment.
An NGO which had rushed in to offer the child counselling at the hospital, failed to provide the necessary long-term support. Their contention was that when they called the girl’s home after about a month, the child’s father declined their help.
The investigations were full of loopholes. There was delay in arresting the accused and in seizing objects from the crime scene. The bedsheet had semen stains of all the four accused, but the judge held that this could not be connected to the victim as the vaginal swabs did not show any semen. The fact that one of the boys had purchased a packet of condoms from the nearby chemist was brought on record, but this fact was not linked to the absence of semen stains in the vaginal swabs during the arguments by the public prosecutor, and the used condoms were never recovered.
The girl had identified all the four accused during the Test Identification Parade, but she turned “hostile” in court. The mandatory recording of her statement before a judicial magistrate under Section 164 of the CrPC, as stipulated under the POCSO Act, was not done, and hence the same could not be used to counter the discrepancies in her oral deposition.
An independent witness faltered in identifying the accused and hence his evidence could not withstand judicial scrutiny. There is reason to believe that the girl’s alcoholic father arrived at a “settlement” with the accused. During the trial, the judge noticed that the victim was being brought to court by the defence lawyer, as though she was a witness for the defence!
Everyone concerned failed the 13-year-old victim of brutal gangrape — the family, her friend, the police, the judge, and the civil society group. Yet, it is this very case that experts and the media is touting as an example of a “false” case. The reasons for acquittal are many and it would be dangerous to equate acquittals with “false cases”.
The POCSO Act was enacted for the protection of children from the most vulnerable sections of our society against sexual violence.
The need now is to demand stakeholder accountability and insist on a survivor-centric approach towards victims of sexual violence.
The writer is a women’s rights lawyer and consultant to RAHAT, a collaboration between department of women and child development, Maharashtra, and Majlis Legal Centre
