This article is written by Sanghita Mukherjee, an Advocate.
Table of Contents
Introduction
This headline had been creating rage all over India, whereas the story is such that a 12-year-old girl child was taken away by a man to his home on the pretext to give guava and then this almost 40 years old man groped her, trying to remove her clothes, and restrained her in a room. She started crying and shouting and luckily her mother came to the place to rescue her in time and her cry was heard by a few neighbours, who were kind enough to testify. Now all these are proven facts beyond any reasonable doubts and on 19th January 2021, a lady judge of the Honourable Bombay High Court gave a verdict that, as there was no skin to skin contact there was no “Sexual Assault” under POCSO Act, and this incident only amounts to “Outraging Modesty of Woman” under the Indian Penal Code. Further, the term of imprisonment was reduced to 1 year from 3 years.
Subsequently, following outrage and protests throughout the country, on 27th January 2021, this order of the Mumbai High Court has been stayed by the Supreme Court of India. Further, the Judge has been demoted due to passing such absurd orders, as the Supreme Court Collegium has withdrawn recommendation to make the judge permanent.
What Was the Reason Behind Such an Insensitive Verdict?
The sole reason given by the lady judge in reducing the imprisonment terms to 1 year and holding the person not guilty under the POCSO Act for Sexual Assault is because the judge felt that the minimum punishment of 3 years under POCSO Act is disproportionate for the reported incident, and the incident elaborated above is not serious enough in nature as to attract 3 years of rigorous imprisonment unless there are more serious incidents where there is skin to skin contact.
Apparently, it has also been analysed by the academicians that such an absurd conclusion to exclude the above incident of child sexual offence as sexual assault for lack of skin to skin contact under the POCSO Act, can neither be reached based on any jurisprudence on interpretation of statute nor by simple application of logic. There is absolutely no logical or legal explanation to justify this verdict.
An act that demolished people’s faith in Law and Order?
I personally believe that the mental status of the Judge and her fitness to remain a judge remains a question as her gender insensitivity is likely to reflect in any order she may pass during her tenure. We tag people as racist or Islamophobic or homophobic for their ingrained belief system that makes them hate others simply based on people’s colour, religion, or sexuality at a subconscious level. Similarly, it is apparent that in the present matter the Judge is highly insensitive towards sexual abuse of the Child, to such an extent that she gave an absurd verdict like the present one.
What is the POCSO Act?
Protection of Children from Sexual Offences Act, 2012 is popularly known as POCSO. POCSO Act is a special law to protect our children from sexual abuses and was enacted with the intention to create deterrence in the society against child sexual offences, that has come to force in 2012. If the definition of Sexual Assault is defined in a such narrow perspective, whereas Child Sexual Assault/ Abuses are not an offence under the POCSO Act, unless there is a skin-to-skin contact, it would have negated the effectiveness of the POCSO Act itself to a great extent and would have thwarted the legislative intent in enacting this special law to protect our children.
In India, anyone having knowledge of Child Sexual Abuse is obligated to report the same to the police. In fact, it is a punishable offence if one fails to report child abuse. Further, this special law provides for higher degree of punishments for different kinds of sexual abuses of children if done by a person in position of trust or authority vis-à-vis the Child, like family members, Police officer, member of armed forces, public servants, hospital staff, staff of an educational institution or religious institution. This Act further provides for punishment for offence like Child Trafficking and Child Pornography as well.
How to File a Complaint Under POCSO Act?
It is also advised that as an effective remedy, as soon as any child sexual abuse incident takes place, people having knowledge of such incidents need to report the same to the police station or SJPU (Special Juvenile Police Unit) on the same day, and the police/SJPU is required to arrange for medical treatment, arrange for shelter home if required and report to the Child Welfare Committee within 24 hours.
The Police, and judiciary are to act in such a manner and conduct the investigation and trial while keeping the identity of the child confidential and without creating any more discomfort or trauma for the child involved.
What do to if, you come to know sexual abuse of your child or some child you know?
It is your duty to report the incident to police, failure to do so is a crime. The process of investigation will be undertaken by SJPU (Special Juvenile Police Unit) and the protection of law is available for Boys as well as Girls under POCSO Act. Further, it is a crime if you fail to file a complaint of child sexual offence of any kind despite having knowledge of the same.
What do to if you come to know about sexual abuse of a child as a Doctor or a Psychologist?
As a doctor if you have reasons to believe that a child has been sexually abused, it is your duty to report the same to the Police, or the relevant person within the organization who is required to report it to the police. Failure to report child abuse may result in imprisonment of up to six months, with or without fine.
Rights and Process Under POCSO Act
- Once an incident is reported to the Police, it is the Police’s obligation to arrange for medical treatment, arrange for shelter home if required and report to the child welfare committee within 24 hours.
- It is an offence for the Police to refuse to record the offense of sexual assault. Cannot refuse to record even on the ground of not having Jurisdiction. Police are obligated to record it as Zero FIR, and then Transfer it to Concerned Police station.
- The statement should be recorded as an audio-visual.
- The examination is to be carried out in the presence of the parent or other person whom the child trusts, and in the case of a female child, by a female doctor.
- Child Friendly Investigation & Trial: A case of child sexual abuse must be disposed of within one year from the date the offence is reported. The entire trial takes place on camera, repetition of testimony by the child is avoided, the Child shall not face the abuser during the process and in general the trial takes place in a child friendly manner.
- The power of the Special Court to determine the amount of compensation to be paid to a child who has been sexually abused, so that this money can then be used for the child’s medical treatment and rehabilitation.
- It is an offence to reveal the identity of the child in any manner whatsoever even by media and protection of the identity of the child is the duty of the police and all persons involved in the matter.
- False complaints intended to humiliate, extort, or threaten or defame someone is a crime punishable with imprisonment up to 6 months.
The Reality of Justice in Child Sexual Offences
- This specific incident took place in Pune, almost 4 years ago on 14.12.2016 and it took almost 4 years in the sessions court to convict the abuser. The abuser had been mostly living free on bail and hardly the matters are disposed of within the prescribed time of 1 year.
- In this specific matter, the abuser has been fined Rs. 500 for the offence of Sexual Abuse along with rigorous imprisonment terms. Whereas the compensation has been prescribed under the POCSO Act to fund the child’s treatment, counselling, and rehabilitation as it may require.
Is a Compensation of Rs. 500/- adequate to take care of the mental health of the child Concerned?
Now, the requirement of rehabilitation is there for a child who is being abused at home, and for the child who was subjected to sexual assault in Pune as described above, a rehabilitation home is not a requirement.
However, it is strange to see that the courts in India believe that the treatment of the child who has faced sexual assault and been dragged to court for more than four years to prove her abuser, only a compensation of Rs. 500/- is good enough to take care of her mental health. Clearly the judicial system remains ignorant about mental health and treatment requirements of the child till date. It is apparent that though the POCSO Act has incorporated and emphasises involvement of specialists to undertake the entire investigation and trial process sensitively, the education, special training, and mechanism to take care of mental health of the child to protect such child remains a distant dream till date.
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