Opinion Op Ed 09 Nov 2019 The essence of the l ...

The essence of the law was lost in camera

Published Nov 9, 2019, 1:48 am IST
Updated Nov 9, 2019, 1:48 am IST
The Act brought relief not only to the victim, but also to the judicial system which was provided with a clear definition of many grey areas.
In spite of having such powers and provisions to all the stakeholders under the POCSO Act, the amount of injustice brought to the victim girls in Walayar case is alarming.
 In spite of having such powers and provisions to all the stakeholders under the POCSO Act, the amount of injustice brought to the victim girls in Walayar case is alarming.

Childhood is a promise that is never kept: Ken Hill.

A promise was given to the childhood of India in 2012 with the introduction of the Protection of Children from Sexual Offences Act, 2012; the promise of a child-friendly court that demands humaneness in judiciary for those who are victims of abuse. POCSO Act is a comprehensive legislation which seeks to provide protection to children from the offences of sexual assault, sexual harassment and pornography and safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated special courts.

 

The preamble of the POCSO Act guarantees the victim child protected rights and freedom in the form of right to life and survival; the best interests of the child; the right to be treated with dignity and compassion; the right to be protected from discrimination; the right to special preventive measures; the right to be informed; the right to be heard and to express views and concerns; the right to effective assistance; the right to privacy; the right to be protected from hardship during the justice process; the right to safety and the right to compensation.

In order to uphold these minimum legal promises the child should be treated differently in cases of apprehensions of sexual abuses cases; otherwise it will amount to violation of Article 14 of the constitution.

The Act brought relief not only to the victim, but also to the judicial system which was provided with a clear definition of many grey areas. There were views that a child cannot have a sense of modesty unless she attains puberty, that a female child is born with modesty, that an act should be assessed depending on the intention of the accused. They made the legal provisions very vague and obscure. Many aspects of the substantive law like sexual organ and insertion of the object were not included under any other law (for eg.  Section 376 IPC.) But with the amendment to the IPC and the POCSO Act, the hands of judicial officers are strengthened enough to extend justice to the victim child.

In spite of having such powers and provisions to all the stakeholders under the POCSO Act, the amount of injustice brought to the victim girls in Walayar case is alarming.

A 13-year-old was found hanging in the one-room house, where she lived with her parents and her sister. An FIR was registered for a case of unnatural death. Later in a couple of months her sister aged 9 years was also seen hanging.

Finally the court observed that the prosecution has 'miserably failed to prove' the alleged offences against the accused 'beyond reasonable doubt'.

The enactment of POCSO set values and norms for society in order to help the maintenance of rule of law. This is possible only with the appropriate judicial intervention. When used intelligently, this intervention would be a powerful approach to resolve a socio-legal problem.

It is essential that a clear message must be sent to the community that the law will be applied in all its severity so that the potential perpetrators of the offence be cautioned that the commission of any such offence will be dealt with stringently.

Indian judicial history has the infamous Mathura case that called for significant amendments in the Criminal Procedure Code in 1983regarding consent in rape cases 376 (2) IPC. This was done by bringing in an amendment in the Indian Evidence Act, Section 114(A) as well. This amendment tried to overcome the gender inequ-ities which can exist at workplaces, police stations, jails and other such situations, in which the victim is overpowered and a forceful sexual act committed. The Supreme Court acquitted the accused in Mathura rape case.

Whereas in later in Gurmit Singh cae, the Supreme Court observed through Justice A.S. Anand that "What has shocked our judicial conscience all the more is the inference drawn by the court, based on no evidence and not even on a denied suggestion, to the effect:

"The more probability is that (prosecutrix) was a girl of loose character. She wanted to dupe her parents that she resided for one night at the house of her maternal uncle, but for the reasons best known to her she does not do so and she preferred to give company to some persons."

Justice Anand observed: We must express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a judge. Such stigmas have the potential of not only discouraging an even otherwise reluctant victim of sexual assault to bring forth complaint for trial of criminals, thereby making society to suffer by letting the criminal escape even without a trial. The courts are expected to use self- restraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on society as a whole-where the victim of crime is discouraged"

The system demands a minimum sensitivity to conduct the trial process in our judicial system. The victim protection plans should be appropriately implemented.

(The writer is former pro-vice chancellor, MG University and former faculty at National Judicial Academy, Bhopal)

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