26, Mar 2018 | Sushmita
Child Sexual Abuse cases have been on a rise in the country and a three judge bench, led by Chief Justice of India, Dipak Misra has ordered data from the High Courts on the number of pending child sexual abuse cases booked under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The 2016 data from the National Crime Records Bureau (NCRB) indicated that only 229 out of a total of 1,01,326 POCSO cases were decided by the trial court in the year. The data further revealed that 70,435 POCSO cases were carried forward from previous years. In 2016, 30,891 fresh cases were filed. These came before trial courts in 2016, making the total number of cases pending adjudication as 1,01,326.
Advocate Alakh Alok Srivastava filed a petition in the case of the brutal sexual assault of an eight month old child who is currently admitted in AIIMS for intensive care under the court’s order dated January 31. The petition said that there was 95% pendency rate, as per the NCRB. CJI Misra said that the court wanted fresh and independent data collected by a team constituted under the supervision of the CJIs of the High Courts.
Most number of abuse of children cases were found to be in Maharashtra where 17,300 cases are still pending trial, UP had 15,900 and Madhya Pradesh 10,950 cases. Kerala, Odisha, Karnataka, Rajasthan, West Bengal and Gujarat have pendency of cases ranging between 3,500 and 5,000. A year before, it was reported that the total pendency of POCSO related cases was at 27,558 across the country. One year later, this number has reached 90,205. The significant jump in the pendency is worrying.
Provisions for appointment Special Prosecutors
The POCSO Act mandated the establishment of special courts for the trial of cases of crimes against children and were intended to protect minors and their victimization. To ensure that the trial gets completed in one year from the day of registration of the FIR, as many as 597 such courts were constituted in 681 districts across the country in almost every district. These courts come under the supervision of High Courts and High Courts are supposed to monitor the working of POCSO courts. HC and states appointed 459 special public prosecutors and 729 special juvenile police units were set up. However, an efficient monitoring system is missing.
The ‘known’ Devil
Another survey, in which more than 45,000 children aged between 12-18 years participated across 26 states, revealed that one in every two children is a victim of child sexual abuse. Moreover, one in every five do not feel safe because of the fear of being sexually abused. The survey also reported that one in four families don’t come forward to report child abuse.
Further, various studies conducted by different groups have indicated to the fact that in more than 80 percent cases the perpetrators are known to the victim. While pendency of cases in the courts is definitely a concern, a far more serious concern is the abuse of children by their acquaintances especially fathers and step-fathers. Procedural delays in such cases mean that the accused, who can avail bail, goes back to the same house. More than that, in most such cases children are unlikely to report the cases due to the acute power imbalance that may be existing between the survivor and the perpetrator. In such cases an altogether different handholding will be required.
Child-friendly provisions under POCSO
The provisions like mandatory reporting etc. in the POCSO Act, 2012 ensured that the number of cases getting reported increased. This was in a context that the judges were extremely insensitive and would come with a judicial bias of a ‘false’ and ‘genuine’ case. Children would be made to wait outside police stations, police would not record cases of child sexual abuse. Courts would make children sit in corridors. POCSO changed some of these things, with clauses such as: a child needn’t go to the police station to file an FIR, their statement to be recorded by a woman in plainclothes, the Child Welfare Committee to provide a ‘support person’ throughout investigation and trial etc.
The glaring Lacunae
Section 32 of the POCSO Act mandated the appointment of independent Special Public Prosecutor for every Special Court for conducting cases only under the provisions of the Act. However, a petition filed by Advocate Gaurav Bansal, seeking directions for implementation of the Act, highlighted that as many as twelve states which included states of Maharashtra, Gujarat, Kerala among others and two union territories have not yet appointed the public prosecutors. You can view the entire Writ Petition by Gaurav Kumar Bansal here.
The then Chief Justice of India, J S Khehar’s bench directed high court chief justices to take suo-motu action and appoint special public prosecutors to deal with cases of crimes against children. To make the trial child-friendly, POCSO Section 33(2) specified that the Special PP must communicate the questions (for examination-in-chief, cross examination or re-examination of the child) to the Special Court first, which will then put those questions to the child. The petition also alleged that because of such delays, speedy trials of such cases were not happening.
The issue of pendency of cases combined with the knowledge that many of these perpetrators are known to the victims, poses a serious danger to the life and morale of the child. It also compels us to think harder about more creative mechanisms to ensure the safety of our children.