Implemenation Woes

Implementation w oes S W A G A TA RA H A RECENT incidents of brutal sexual assault against very young children have triggered public anxiety about children’s safety as well as anger against perpetrators of such crimes. The government response has been in the form of a hasty Criminal Law (Amendment) Ordinance, 2018, which enhances the punishment for rape, rape of children below 16 years, and introduces the death penalty for rape of children below 12 years. The amendment also requires the charge sheet and trial in cases of rape of children below 12 years and 16 years to be completed within two months. These are in addition to the Protection of Children from Sexual Offences * Swagata Raha was a part of the team that conceptualized the studies on the working of Special Courts under the POCSO Act at CCLNLSIU and led the studies in Delhi, Assam, and Maharashtra. 2 SEMINAR 711 – November 2018 (POCSO) Act, 2012, which was enacted to address offences of penetrative sexual assault, sexual assault, sexual harassment and pornography against persons below 18 years. The POCSO Act provides childfriendly procedures for ‘safeguarding the interest and well-being of the child at every stage of the judicial process.’1 Penetrative sexual assault of a child below 12 years attracts a fine and a minimum punishment of ten years and a maximum of life imprisonment under Section 6 of the POCSO Act. If conviction rates are considered as an indicator of effective implementation of a legislation, the steady decline in the rate of conviction of cases of rape of children over the last 10 years would suggest that outcomes have not improved in the five years since POCSO 1. POCSO Act, Statement of Objects and Reasons. Act came into force. Conviction rates for child rape, for instance, dropped from 32.6% in 2006 to 28.2% in 2016.2 It may be argued that this is because the age of consent has been raised from 16 to 18 years and that the bulk of cases involving charge of rape and penetrative sexual assault are ‘romantic cases’ in which the minor victim does not support the prosecution thus resulting in acquittal. However, studies have shown that such cases constitute not more than 20% of decided cases.3 T he governmental response to incidents of sexual violence has primarily been to amend penal laws to enhance punishment.4 The assumption that the criminal justice system is effectively responding to and dealing with sexual offences against children needs to be scrutinized based on qualitative reviews. This article highlights implementation gaps based on stakeholder interviews and analysis of 2788 judgments of Special Courts in Andhra Pradesh, Assam, Delhi, Maharashtra and Karnataka by the Centre for Child and the Law at the National Law School of India University, Bangalore (CCL-NLSIU).5 The central argument is that efforts need to be intensi2. Crime in India, 2006, Table 6.11, http:// ncrb.gov.in/StatPublications/CII/CII2006/ cii-2006/Table%206.11.pdf, Crime in India, 2016, Table 4A.5, http://ncrb.gov.in/Stat Publ i c a t i o n s / C I I / C I I 2 0 1 6 / p d f s / Ta b l e % 204A.5.pdf 3. Shraddha Chaudhary, ‘Chapter 9: “Love”, Consent and the POCSO’, p. 133 in CCLNLSIU, Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (2018). 4. The Criminal Law (Amendment) Act, 2013 enacted in the wake of the Delhi gang rape case of 2013 introduced minimum sentences for rape and aggravated rape and removed judicial discretion. Substantive changes were made to the offence of rape and separate offences on rape that causes death or results in permanent vegetative status, gang rape, sexual intercourse by a person in authority were also introduced. fied for strengthening the implementation of the POCSO Act and that enhancement of punishment will have a counterproductive effect on the reporting and trials of child sexual abuse. T he POCSO Act requires a Sessions Court designated as a Special Court trying offences under the POCSO Act to adhere to the following childfriendly procedures: * Take direct cognizance of the case without the accused being committed to it for trial. [Section 33(1), POCSO Act, 2012] * Prohibit direct questioning of the child during examination-in-chief, cross-examination and re-examination by the Special Prosecutor and the defence counsel. The questions should be communicated to the Special Court who should in turn put those questions to the child. [Section 33(2), POCSO Act, 2012] * Permit frequent breaks for the child during the trial. [Section 33(3), POCSO Act, 2012] * Create a child-friendly atmosphere 5. CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Delhi (2016), https://www.nls.ac.in/ccl/ jjdocuments/specialcourtPOSCOAct 2012.pdf (Delhi Report): 667 judgments from 1 January 2013 till 30 September 2015; CCLNLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Assam (2017), https://www.nls.ac.in/ccl/ jjdocuments/studyspecialcourtassam POSCOAct2012.pdf (Assam Report): 172 judgments from January 2013 till 31 August 2016; CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Karnataka (2017), https://www.nls.ac.in/ ccl/jjdocuments/posco2012karnataka.pdf: 110 judgments from September 2013 till April 2016; CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Maharashtra (2017), https://www.nls.ac.in/ ccl/jjdocuments/POSCOMaharashtrastudy. pdf: 1330 judgments from 1 January 2013 till 31 December 2016; CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Andhra Pradesh (2017), https://www.nls.ac.in/ccl/POSCOAP2017 study.pdf: 509 judgments from 1 January 2013 till 30th June 2017. by allowing a family member, guardian, relative or any person the child has trust or confidence to be present in court. [Section 33(4), POCSO Act, 2012] * Ensure that the child is not called repeatedly to the court to testify. [Section 33(5), POCSO Act, 2012] * Ensure that the child is not subject to aggressive questioning or character assassination in the court and ensure that the dignity of the child is maintained during the trial. [Section 33(6), POCSO Act, 2012] * Ensure that the identity of the child is not revealed during investigation or trial. [Section 33(7), POCSO Act, 2012] * Direct the payment of compensation to the child for the physical and mental trauma suffered by the child or for the child’s rehabilitation. [Section 33(8), POCSO Act, 2012] * Record the evidence of the child within 30 days of taking cognizance of the case. [Section 35(1), POCSO Act, 2012] * Complete the case within one year of taking cognizance of the matter as far as possible. [Section 35(2), POCSO Act, 2012] * Ensure the child is not exposed to the accused at the time of recording the evidence. [Section 36(1), POCSO Act, 2012] * Use the assistance of an interpreter or translator where necessary in order to record the evidence of the child. [Section 38(1), POCSO Act, 2012] T he CCL-NLSIU studies reveal the varying degree of compliance with these procedures and the following gaps in all states: 1. Lack of exclusive Special Courts and special public prosecutors. Pendency of cases of child rape has increased from 81.3% in 2006 to 89.6% in 2016.6 Even though special courts were designated in all five SEMINAR 711 – November 2018 3 states, they were not exclusively dealing with POCSO or related matters. Not only does this delay the disposal of cases, it also makes it difficult for judges to shift mindsets when simultaneously dealing with crimes like murder, drug offences, offences under anti-terror laws, etc as well as POCSO cases. One former judge of a Special Court in Delhi shared, ‘You have child witnesses and suddenly you have Abu Salem coming in with threefour guards to the court.’7 A lthough Section 32(1), POCSO Act mandates that special public prosecutors should conduct cases only under the POCSO Act, this was flouted in all states. The prosecutors, just like the courts, are overburdened. They rarely spend time with children to build rapport, understand their vocabulary and developmental needs, or prepare them for trial. Prosecutors interviewed by CCL-NLSIU felt that any prior interaction with the child would be used by the defence against them to argue that the child had been tutored. Unless structural problems such as the sufficiency of courts, prosecutors, judges, forensic laboratories and facilities are addressed, speedy trials will be impossible. Instead of addressing these, the ordinance mandates the completion of trials in cases of rape of children below 12 years within two months. This is an impractical timeline and measures like these demonstrate a lack of understanding of the root causes of judicial delays and political willingness to effect changes. 2. Routine exposure to the accused. The court complexes have not been designed bearing in mind the impact on a 4 6. Crime in India, 2006, Table 6.11, http:// ncrb.gov.in/StatPublications/CII/CII2006/cii2006/Table%206.11.pdf, Crime in India, 2016, Table 4A.5, http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Table%204A. 5.pdf 7. CCL-NLSIU, Delhi Report, p. 32. SEMINAR 711 – November 2018 child and a child’s needs. Exposure of the child victim to the accused, police, advocates, and others outside the courtroom is thus rampant. CCLNLSIU’s studies revealed that most courts do not have separate waiting rooms or entrances for victims.8 Exposure to the accused can have a very intimidating effect on the child apart from making her/him vulnerable to threats and pressures to retract. Few judges took the initiative to seat the child in their chambers to avoid exposure. However, special courts are largely ‘special’ only in name. The design, structure, and processes in these courts is not different from those of regular courts. These courts are not accessible to persons with disabilities. I n Sampurna Behura v. Union of India,9 the Supreme Court urged the Chief Justices of High Courts ‘to seriously consider establishing child friendly courts and vulnerable witness courts in each district.’ Such courts have been established in Delhi, Bangalore, Hyderabad, Goa, and efforts are underway in other states. Attempts to establish child-friendly courtrooms and waiting rooms, however, remain confined to capital cities of a few states. All special courts, need to take proactive measures to prevent the child’s exposure to the accused and other outside the courtroom as it will take decades before structural changes to suit the needs of children are made in all special courts. 8. Sonia Periera and Swagata Raha, ‘Chapter 1: Structural Compliance of Special Courts with the POCSO Act, 2012’, p. 5 in CCLNLSIU, Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (2018). 9. Writ Petition (Civil) No. 473 of 2005 decided by the Supreme Court on 09.02.18. 10. Sonia Periera and Swagata Raha, ‘Chapter 2: Procedural Compliance of Special Courts with the POCSO Act, 2012’, p. 21 in CCL-NLSIU, op. cit., 2018. 3. Children are directly questioned by defence. The CCL studies reveal that this significant protection aimed at ensuring the child’s dignity and protecting the child’s interest and at the heart of ensuring a child-friendly trial is not enforced by most special courts. 10 Judges routinely face resistance from the defence team who refuse to give questions in advance or in writing and insist on posing the questions directly. A case from Maharashtra, for instance, reveals the line of questioning adopted by the defence in a case of sexual assault of a 9-year-old girl.11 Her responses during cross-examination was recorded by the judges as follows: ‘She admits the fact that accused ...had caught hold her wrist and at relevant time she shouted but persons had not gathered there… She admits the fact that she was taken on the terrace of the building by staircase and 10 minutes have been spent for taking her on terrace from A to Z Kirana shop. She admits the fact that 20 minutes were spent for the act including kissing her, pressing her breast and touching the tongue of accused to her urethra, and at relevant time she had not tried to resist by moving her hand. Her admissions further show that accused has kept his tongue in her mouth for five minutes, but she did not bite the tongue of accused, but she started weeping after putting tongue by the accused in her mouth.’ T his protection runs the grave risk of being undermined if death penalty for child rape is approved by Parliament. Children below 12 years, whose interest the Criminal Law (Amendment) Ordinance ostensibly seeks to protect will inevitably be subjected to harsh 11. State of Maharashtra v. Khalid Ahamad Mohammad Hanif Julaha, Special Case No. 12/2015 decided on 19.09.2016 (Dhule) cited in CCL-NLSIU, Study on the Working of Spe- questioning by defence lawyers in a bid to avoid the death penalty. 4. Rare award of compensation. There was no mention of an award of interim compensation in any of the judgments studied except in one case from Assam. Special courts preferred to consider compensation only if the child testified against the accused. Even a final compensation is ordered in rare cases. Compensation was ordered in 22.09% cases in Assam, 9.39% cases in Maharashtra,12 5.39% cases in Delhi, 3.35% cases in Andhra Pradesh, and 3.63% cases in Karnataka (three districts).13 In a majority of cases, the Special Court did not direct the state to pay compensation in case the accused failed to do so or over and above the fine amount. When the offender is directed to pay compensation, the victim is effectively denied timely monetary relief as it is subject to appeals and realization.14 Besides, confusion exists on the ground as to who can award compensation – a Special Court or District Legal Services Authority – as a result, victims are effectively denied timely relief. 5. Investigation and prosecutorial lapses. Factors that contributed to acquittals under the POCSO Act include investigation and prosecutorial lapses such as failure to collect proof of age or establish the victim’s age. Other lapses included the failure to collect relevant materials, record statements of relevant witnesses, store forensic samples correctly, and non-compliance with provisions of the POCSO cial Courts under the POCSO Act, 2012 in Maharashtra (2017), p. 18, https://www.nls. ac.in/ccl/jjdocuments/POSCOMaharashtrastudy.pdf 12. The Manodhairya Scheme may have been applied. 13. Swagata Raha, ‘Chapter 5: Compensation under the POCSO Act, 2012’, p. 74 in CCLNLSIU, Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (2018). 14. Ibid. Act when recording a child’s statement. The charge sheets do not accurately reflect aggravated provisions of penetrative sexual assault or sexual assault even if the child is pregnant, below 12 years of age, disabled, or abused by a trusted person. T he amendment proposed by the Ordinance to Section 173(1A) of the Code of Criminal Procedure, 1973, stipulating mandatory filing of a charge sheet within two months will adversely impact the quality of investigations in cases of rape of children. If the police are not given sufficient time to investigate rape charges, the defence will have ample opportunities to take advantage of the gaps in the charge sheet. 6. Failure to appreciate testimonies sensitively. Although consent is immaterial under the POCSO Act, several Special Courts acquitted the accused because the victim did not offer any resistance. For instance, in a case in Assam, the Special Court overlooked the fact that the 15-year-old victim had been gagged by the accused and observed: ‘It is hard to believe that accused, who was known to the victim before the incident, would enter her house and commit rape, in the evening hours and the victim would not raise alarm for help even though she admitted in her evidence that there are houses of many people near her house. Further, there is no evidence that she resisted the alleged rape by the accused. Victim in her evidence did not state sustaining of any injury on her person as a result of resistance of rape on her person.15 In a case from Maharashtra, the testimony of a 7-year-old boy who had been allegedly raped by the accused was rejected because the victim did not 15. State of Assam v. Krishna Sahu, G.R. Case No. 870 of 2014 decided on 27.07.2016 cited in CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in As- exhibit ‘ideal victim behaviour’ and had gone on to play with his friends after telling his grandmother about the incident. It was observed, ‘He should not have stayed cool and calm and gone to play with his friends if he had suffered bleeding due to forced carnal intercourse’.16 Further, ‘[h]ad the victim suffered bleeding injury to his anus and he had pain there, he should have returned home by crying and weeping’ and ‘It is quite improbable to perform carnal intercourse against a child of 7 years single handedly.’ 7. Absence of a robust support system. Based on the CCL-NLSIU Studies, it can be concluded that the principal reason for acquittal is that the victim did not support the prosecution during trial. Child victims turned hostile in 94% cases from three districts in Karnataka, 78% cases in Andhra Pradesh, 67.5% cases in Delhi, 47% cases in Maharashtra, and 32% cases in Assam. However, none of the states in India, except Delhi, has a system of victim and witness protection. A panel of support persons, to provide assistance during investigation and trial, was not in place in majority of the districts visited by CCL-NLSIU.17 As a result, most children and their families navigated the criminal justice system entirely on their own. 8. Impact of relationship with the perpetrator on testimony and outcome. According to ‘Crime in India 2016’, 94.6% of offenders are known to vicsam (2017), p. 81, https://www.nls.ac.in/ccl/ jjdocuments/studyspecialcourtassam POSCOAct2012.pdf 16. State of Maharashtra v. Mohan alias Falkya Shamrao Pawar, Special Case No. 28/ 2015, decided on 4/19/2016 (Buldana) in d. CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Maharashtra (2017), p. 95, https://www.nls. ac.in/ccl/jjdocuments/POSCOMaharashtrastudy.pdf 17. Sonia Periera and Swagata Raha, ‘Chapter 2: Procedural Compliance of Special Courts with the POCSO Act, 2012’, p. 26 in CCL-NLSIU, op. cit., 2018. SEMINAR 711 – November 2018 5 tims of rape and rape read with penetrative sexual assault under the POCSO Act and strangers constitute a minority. The perpetrator was known to the victim in 80% cases in Delhi, 78% cases in Assam, 77% cases in Maharashtra, 75% cases in Andhra Pradesh, and 70% cases in the three districts in Karnataka. A further analysis revealed a link between the relationship with the perpetrator and the testimony. CCL-NLSIU’s studies revealed that high percentage of cases in which victim turned hostile were cases in which the accused was the husband, boyfriend, father/stepfather, brother, teacher and relative. As a result, convictions in these categories of cases was much lower compared to cases in which the accused was a stranger or an acquaintance. Findings of the CCL-NLSIU studies raise the concern that introduction of the death penalty will deter children and their families from reporting sexual abuse by family members and relatives. Even if cases are reported, the number of children turning hostile to protect someone from the gallows is likely to increase. This will create immense psychological conflict and pressure on children and hinder their healing in the long-term and nullify the objectives of creating a child-friendly reporting system. A 6 n attitudinal shift among judges, police, prosecutors, defence lawyers, and others is necessary for the operationalization of the child-friendly provisions under the POCSO Act. Child development and communication with children should be included in the curriculum for training of police, judges, and prosecutors. Special Courts should zealously apply the childfriendly procedures under the POCSO Act and reject attempts by defence counsels to adhere to the requirement of putting the questions to the child SEMINAR 711 – November 2018 through the judge. Concerted action is required to provide support to children and protect them during the investigation and trial. Victim and witness protection measures should be introduced via statutory amendments. State governments need to develop an action plan to ensure availability of support persons in all districts. Compensation processes need to be streamlined, particularly for interim compensation. T he Law Commission of India is particularly relevant in this context: ‘In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime.’18 A government and society keen to enhance protection of children from sexual offences cannot afford to render its children more vulnerable to abuse by prescribing the death penalty for rape of children. Without genuine engagement with the root causes of sexual violence against children and issues concerning the implementation of existing laws pertaining to sexual offences against children, provisions like these will only deter children from reporting and result in a further drop in convictions. Apart from strengthening the implementation of existing laws, an examination of stereotypes and practices that condone inequality and violence against women and children is essential. Unless these are challenged and dismantled through sex education and awareness programmes, sexual violence against children cannot be effectively addressed. 18. Law Commission of India, 262nd Report on The Death Penalty (2015), para 7.1.3.