New Delhi: Amendment bills should fix loopholes in the original law but the amendments contained in the Protection of Children from Sexual Offences (POCSO) Act of 2019 do not improve upon the original bill of 2012, child rights activists say.

The Protection of Children from Sexual Offences (Amendment) Bill of 2019 actually weakens the POCSO Act, Shailabh Kumar, lawyer and co-director of Haq: Centre for Child Rights, said. Including death penalty as punishment could reduce the number of cases reported and might lead to murder of the victim. Further, there has been no amendment to provide for compensation of victims, and no strong solution for reducing pendency of cases.

Most members of parliament across political parties welcomed the amendments, and the bill--though debated in the house for nearly four hours--was passed without being referred to any parliamentary standing committee. In this monsoon session of the Lok Sabha, 34 other bills were passed, each receiving little attention from lawmakers. This is the third story in our series analysing the most significant of these 35 bills.

The POCSO Act was amended with five new clauses, including extending punishment from 10 to 20 years for penetrative sexual assault with children below the age of 16 and death sentence for aggravated penetrative sexual assault by a person in a position of authority--which includes police officers, members of the armed forces and public servants. It also includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child.

The death penalty can also be given in case of aggravated sexual assault which results in the death of a child or for assault during a natural calamity or in any situation of violence, the amendment says, replacing the words ‘communal or sectarian violence’ in the original bill.

Other provisions change the length of prison sentences for certain kinds of crimes, and would not have an impact on the rate of crime against children, activists said.

Death penalty not a deterrent

“Introducing death penalty was nothing but a populist move,” said Kumar.

Activists are concerned, as we said, that the introduction of death penalty will reduce the number of reported cases of sexual offence against children. As many as “94% of the accused are known to the victims in cases of child sexual abuse”, said Mohd Ikram, manager, child safeguarding policy at Breakthrough, a women’s rights organisation in Delhi. “When most accused are personally known to the victims and their families, the possibility of death may deter the victims to file a complaint.”

There is also a higher likelihood that the accused would rape and murder a victim to avoid getting caught, Ikram said.

Further, no empirical evidence exists to suggest that death penalty has a deterrent effect over and above life imprisonment, according to the Law Commission’s 2015 report on death penalty. The report suggested abolishing death penalty for all cases except terrorism.

In 28.9% of the cases where a trial court awarded the death sentence, the case ended in acquittal by a higher court. The death sentence was conclusively given in only 4.3% of cases--trial courts erroneously imposed the death penalty in 95.7% cases, according to the report.

“If we look at the timeline, the ordinance introducing death penalty was brought right after the Unnao and Kathua rape cases in early 2018 because of a huge uproar,” said Kumar. “PM [Narendra] Modi went to the World Trade Organization meeting where India was criticised for its policy on women and child safety, and the ordinance was brought in immediately after.”

In the Kathua case, an eight-year-old girl was abducted, raped and murdered in a village near Kathua in Jammu and Kashmir in January 2018. Six of the seven accused were convicted in the case, of which three were imprisoned for life and three sentenced to five years in jail.

In the Unnao case, a 17-year-old girl was gang-raped in April 2017, and the accused is a member of the Uttar Pradesh legislative assembly from Unnao, and was a member of the Bharatiya Janata Party, in power in the state and at the Centre. The case is still going on.

Instead of acting in haste, the government should have studied how people would react to the changes, and understood the problems in implementation of the Act, Kumar added.

“In addition, the bill is silent when it comes to protecting the victim and their family in cases where the accused is in a position of authority,” Ikram said. “Merely increasing the punishment for aggravated sexual assault is not enough.”

Trials pending for most cases

The police recorded 106,958 crimes against children in 2016, the latest year for which data are available, from the National Crime Records Bureau (NCRB). Of these, 36,022 cases were recorded under the POCSO Act. But 89% of the cases that were registered in 2016 were pending trial. Over 90% of cases registered in 2014 and 2015 were pending trial, according to NCRB data. Courts convicted the accused in only 29.6% of cases in 2016.

From January to June 2019, 24,212 cases of child sexual assault or abuse were registered under POCSO, of which 27% cases went on trial, as was noted during the parliamentary debate during the amendment of the Act; 4% cases were completed.

The Supreme Court issued directions to districts with more than 100 pending cases under the POCSO Act to set up fast-track courts with a resolution deadline of 60 days. As many as 1,023 fast-track special courts for POCSO cases would be set up, Minister of Women and Child Development Smriti Irani, who introduced the bill in the Rajya Sabha, said.

But an increase in the number of special courts would not necessarily lead to a reduction in pendency of cases, said Kumar.

For instance, fast-track courts do not address the problem of vacancies in courts. Special courts constituted under the POCSO Act will have judges not below the rank of a sessions judge and will be appointed from the same pool of judges.

With 28.7 million cases pending in district and subordinate courts, there are currently 17,891 judges against the required strength of 22,750, according to the 2018-19 Economic Survey. There are over 4 million cases pending in the country’s high courts, which would need 8,152 more judges to resolve. High courts have 62% of the sanctioned judges, with only 671 out of 1,079 judges’ positions filled, according to the economic survey.

Activists said that creating a child-friendly environment in courts is important so that the judicial and administrative process does not add to the trauma of the child. In the Indian judicial system, both judges and special public prosecutors need more training to handle sensitive cases, Kumar said. For instance, the Juvenile Justice Board is headed by a principal magistrate who hears cases only related to children, which helps them be more sensitive and give all their time to such cases.

Further, the bill should have tried to lay down rules to improve police investigation into these cases. For instance, the Supreme Court, in response to a public interest litigation on the alarming rise in reported child rape incidents, slow investigations and time in receiving lab reports, suggested designated forensic science laboratories in every district of the country for the POCSO Act.

One-stop centres

The amended POCSO Act provides for the setting up of one-stop centres where child victims can get shelter, medical assistance, counselling and legal aid, all under one roof. Activists welcomed this provision.

However, these shelter homes would need to be monitored. For instance, 100 complaints of child sexual abuse were made at a single one-stop centre in Haryana, according to a response to a Right to Information (RTI) request filed by Aseem Takyar, an activist, the Times of India reported on June 6, 2019.

Activists said the child support system should be further strengthened and victims should be provided with counselling and financial compensation for their mental and physical well-being while the case is underway.

Lack of process for compensation

The National Legal Services Authority (NALSA) compensation scheme for survivors and victims of rape will work as a guideline for special courts to award compensation, a Supreme Court bench had ruled in 2018, and had asked the government to make compensation rules under the POCSO Act itself.

But even after the amendment, no rules have been framed by the women and child development ministry. Further, the bill does not say who gets the compensation if the child dies.

Gaps remain in the implementation of the compensation scheme. For instance, from 2013 to 2018, 3,153 cases were registered under POCSO in 25 districts of Tamil Nadu. In only 95 of these cases was the victim given interim compensation, according to the response to an RTI request filed by a non-governmental organisation, as reported by The New Indian Express on February 3, 2019.

Antiquated view of consensual sex

The legislation takes an antiquated view in the treatment of consensual sex between young adults. POCSO Act does not consider adolescents from 16-18 years of age as consenting adults who can indulge in sexual activities and fails to distinguish between consensual sex and sexual abuse. This is often misused by families to cover up cases of elopement and inter-caste marriages.

In a recent case, the Madras High Court suggested that the age defining a ‘child’ should be reduced from 18 to 16. The court also noticed that the POCSO Act needs to take into account the age-gap between the abuser and the victim to differentiate between teenage consensual relationships and sexual abuse.

(Ali is an IndiaSpend reporting fellow.)

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