Author - Varthika Gupta Pursuing LL.B from Bharati Vidyapeeth University, Delhi.
India is second most populous country within the world and latest Census reveals that it’s a home to 17% of the world's population. Approximately 19% of the world's children live in India, which constitutes 42 % (more than one third) of India’s total population and around 50% of those children are in need of care and protection. Signing up to the United Nations Convention on the Rights of the child in 1992, India promised to guard its children from all sorts of sexual exploitation and sexual assault. The Convention enjoins state machinery to stop the inducement or coercion of a child to engage in any unlawful sexual intercourse.
Growing concerns about female infanticide, child rapes and institutional abuse of youngsters led to the commissioning of the primary large scale government sponsored research study to assess the extent and nature of kid abuse in India. The govt commissioned survey has found that quite 53% of Indian children are subjected to sexual assault / assault. Majority of those cases were perpetrated by someone known to the kid or during a position of trust and responsibility, Not surprisingly, most youngsters didn't report the abuse to anyone. Further, there's regional and rural urban variation within the rates and extent of child sexual abuse within the country.
Girls are more susceptible to sexual assault, although boys too reported a high percentage of victimisation and are subject to greater social stigma. Although sexual exploitation and abuse is strongly correlated to poverty, it occurs in families across the socioeconomic and non secular spectrum. However, factors that facilitate child sexual abuse, like poverty, overcrowding, relatives living arrangements, abundance of street children, and lack of recreational facilities in families are by no means exclusive to India. Admittedly, their impact could be exaggerated or intensified given the population density and size in India. Thus, a complex mixture of individual, ecological and situational factors that are said to facilitate child sexual abuse might account for its prevalence within the Indian context.
Sexually abused children are severely disappointed by systemic failure of the criminal justice system to redress their grievances and by social ostracism related to such abuse. Only 3 you look after child sexual abuse offences were reported to the police. It's unsurprising that child sexual abuse is severely underreported given the shame and associated socio-cultural stigma, especially if the abuse is within the context of the family. This phenomenon isn't unique to India but common to collectivist cultures in other Asian countries where a person's experience is ignored so on protect the family from shame related to sexual assault.
Legal response to Child sexual assault
Until recently, child sexual abuse wasn't publicly acknowledged as a criminal offence in India. Rape was the most, if not the sole, specific sexual offence against children recognised by law in India. Within the absence of specific legislation, a variety of offensive behaviours were never legally sanctioned like child sexual abuse (not amounting to rape), harassment, and exploitation for pornography. The Central Government Ministry of Women and Child Development and Non-Governmental Organisations (NGOs) were actively engaged in helping break the conspiracy of silence and have generated substantial political and popular momentum to deal with the difficulty. This led to increased activism around child protection issues within the media and public discourse. This movement spearheaded by the Ministry of women and Child Development, led to the enactment of latest legislation called Protection of youngsters against Sexual Offences Act, 2012 (POCSO Act).
a) Administrative pitfalls
As per the provisions of the POSCO Act, the State Governments in consultation with the judge of high court should designate a Sessions Court as a Special Court to undertake offences to facilitate speedy trial. However, POSCO Act further provides that if a Sessions Court had been already notified as a children's court under the Commissions for cover of kid Rights act or if the other Special Court has been designated for similar purposes under the other law, it could even be considered as a Special Court under the POSCO Act. Despite the statutory stipulation that each district should have an exclusive POCSO court, the directives are continuously ignored.
The prime challenge among the effective implementation of the POSCO Act is that the failure to line up Special Courts to affect Child sexual assaults altogether the districts of the country. Fixing of those courts was an important mandate of the Act, the shortage of which has resulted in considerable delay within the disposal and pendency of the cases registered under the act.
The apathetic attitude of the State Government's bureaucracy is reflected by the very fact that until and unless the Supreme Court doesn't intervene, neither do they formulate any manual associated with a law, nor do they fulfil other formalities for its implementation.
b) Lack of experience to handle the cases
To make the matters worse, the judges appointed to handle child sexual abuse matters aren't subject experts as neither are they provided additional training by the government nor do they seriously study the law concerning such cases. As a consequence, they consider such cases as a further burden, and hence, cases of child sexual abuse aren't dealt effectively and efficiently as envisaged under the Act.
A classic example of the shortage of experience is reflected during a judgment gone by a Special Court (actually a sessions court) in Thane, Maharashtra, on the 22nd of December 2016 a perjury notice was issued by court to a 16-year-old minor girl during a case registered under the POSCO Act. Although she testified against her father within the examination-in-chief, she turned hostile during the ultimate stages of the cross-examination conducted by the defence counsel. The trial strategy on a part of the defence was almost just like the rape trials involving adult women victims, where attempts are made to devalue the credibility of the victim by questioning her sexual history and moral character. This step belies the spirit and objectives of the Act, which stipulates child-friendly atmosphere through all stages of the judicial process and given paramount importance to the principle of best interest of the child. Most importantly the Act excludes children from being punished for providing false information. In an erroneous move, during this case, the Special Court relied on the POCSO bill, which had allowed a child above 16 years filing a false complaint to be sent to the Juvenile Justice Board for suitable remedial action. However, this clause was deleted when the bill was gone by the Rajya Sabha and is not a part of this law. Unfortunately, during this case, on account of the ignorance of the judge, a judgment was passed in compliance to the POCSO Bill and led to the present erroneous decision.
Hence there's an urgent got to educate the medical, judicial, and law-enforcing agencies about the Act. Awareness and training of all the stakeholders is one among the important variables in providing comprehensive care and justice to children, the longer term of our country.
Child sexual assault may be a scourge of Indian society and hence the Act was introduced in 2012. However, no law are often implemented effectively and efficiently, without the dedicated and coordinated efforts of the implementing agencies. A multidimensional approach is required during this regard, and therefore the onus lies with the state governments, police department, judiciary, and medical fraternity to implement the act in letter and spirit and to reply to those cases with urgency, empathy, and compassion. Speedy trials are possible if the judges, their staff, prosecution, police, and defence coordinate with one another, failing which concept of special courts are going to be defeated. Similarly, doctors also got to be trained to know the intricacies and help in proper scientific collection of varied evidences while examining the kid victim of sexual assault.
Compared to recent years, there's a rise within the number of cases being reported and therefore the same is thanks to the notice which was ready to be created through various training and awareness programs alongside NGOs and Friends of the Police. To enhance the conviction rate, it's important to hurry up both investigation and trial in court in order that the survivor isn't put under pressure to show hostile. The trial in POCSO cases should be completed in one year but instead there are an enormous number of cases pending within the courts. Also the whole process must be more children-friendly.