Teddy Bear, Teddy Bear,
Listen To My Cries
Thousands of child sexual abuse cases are stuck in Indian courts because of inadequate infrastructure and complex legal procedures. Will amendments to POCSO Act and a push from Supreme Court ensure justice for children?
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Teddy Bear, Teddy Bear, Listen To My Cries
Thousands of child sexual abuse cases are stuck in Indian courts because of inadequate infrastructure and complex legal procedures. Will amendments to POCSO Act and a push from Supreme Court ensure justice for children?
The POCSO Trial By Fire
BY SONAL MATHARU

Inside the maze of narrow lanes of east Delhi’s Kalyanpuri slums, Neelam Singh* clutches the hand of Kavita Kumar, a social worker, in her one-room house. “Tell me he will be punished,” Singh says fervently.

In this same house four years ago, Singh’s 14-year-old daughter, Payal*, was raped by a local tantric. Payal had no appetite and was growing weaker when a neighbour suggested the occultist could rid the girl of evil spirits.

On the pretext of performing a midnight ritual, the tantric asked to be left alone in the room with the girl. “I heard her scream, but my neighbour stopped me from going inside,” says Singh.

Within days, Payal, who had epilepsy, but under control for over three years, was admitted to a mental health hospital. Her seizures resurfaced, uncontrolled. Six months later, she died. The tantric is out on bail, back in the slums, continuing his work.

“The incident left her traumatised,” says Singh, who is fighting tirelessly with Kumar’s assistance in one of Delhi’s 19 special courts, also called POCSO courts, designated for cases of children who are victims of sexual offences.

Chargesheet has been filed only in half of the total 24,212 POCSO cases filed this year. Trial has started only in 7,360 of them.

Across the country, as on 2016 more than 90,000 families like Singh’s were waiting for justice for their children in these POCSO courts. In that year alone, a total of 36,022 cases were registered under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The crime data, including sexual violence against children, has not been made public by the National Crime Records Bureau (NCRB) after 2016.

Even in the absence of recent numbers, last month the Supreme Court took suo moto cognisance of the matter, alarmed at the rising numbers of child rapes in the country. Headed by Chief Justice of India (CJI) Ranjan Gogoi, the bench came down heavily on the slow progress of pending cases.

Data provided to the court noted that from January 1 to June 30 this year, 24,212 first information reports (FIRs) were filed in POCSO cases across India. Out of these, charge sheet has been filed only in 12,231 cases, and in 11,981 police investigation is still on. Trial had started only in 7,360 cases, of which the trial courts decided only 911, that is, around four per cent of the total cases registered. Trial is yet to begin in the remaining 4,871 cases.

The bench ordered POCSO courts to be set up in every district where pendency is more than 100 cases. It directed the Centre to supply funds for this and the courts to be functional within 60 days.

While the recent orders of the courts are not revolutionary, the supervision by the SC might bring the much-needed push to get the POCSO machinery functional, feel advocates of child rights.

“The law is not a problem, implementation is a problem,” says Jyoti Mathur, director of training and capacity at the Kailash Satyarthi Children’s Foundation (KSCF), a non-profit working on child rights. She explains how the POCSO Act covers all crimes against children with strict punishment.

The recent amendments add to the comprehensiveness of the law. The POCSO, unlike the Indian Penal Code, considers sexual offences against boys also a crime. It now defines child pornography and states that even storing child pornographic material can invite jail term. Giving drugs to children to enhance sexual maturity in them now falls under aggravated sexual offence, with harsher punishments. So does abusing children in a calamity.

I
The Long Road To Justice

In April 2013, six-year-old Gudiya* was playing outside her house when two men from the neighbourhood lured her with a packet of chips and gang-raped her the entire night. They inserted objects inside her private parts and attempted to strangle her.

Gudiya was rescued the next day. A candle and a broken bottle of hair oil were found inside her private parts. She underwent three surgeries and survived the ordeal. The heinous crime shook the country which was yet to recover from the shock of the Nirbhaya rape case in Delhi a few months earlier.

Gudiya’s case was one of the first tried under the-then newly passed POCSO Act, which came into being in November 2012. Six years later, the trial has still not ended. The POCSO Act mandates the trial in child rape cases to be completed within a year.

“This is a glaring example of how the act remains just on paper,” says Prabhsahay Kaur, legal consultant with Bachpan Bachao Andolan (BBA), a non-profit associated with KSCF.

Analysing the NCRB 2016 data, KSCF estimates in its 2018 study that if no POCSO cases were reported in the country after 2016, it may take more than two decades to clear the backlog. It would take between two years in Punjab to more than a 100 years in Arunachal Pradesh for trials to conclude.

As per latest data submitted to the SC, there are at least 7,277 cases pending in the national capital alone.

So, what explains this backlog of POCSO cases?

II
‘Privacy doesn't mean a curtain between accused and victim’

Disha Kumari* was 14 when her schoolteacher offered her a lift on his motorcycle. He drove to a deserted spot, made her write a letter confessing that she was in a relationship with a schoolboy, threatened to kill her family and then raped her.

Disha stopped going to school in Lalitpur, Uttar Pradesh. Her parents forced her to attend classes and, eight days after she was first raped, the teacher followed her to the school toilet and assaulted her again.

The young girl wrote a suicide note and consumed pesticide. She survived. In the hospital, the doctors found the note and that is when her parents learnt why she had become aloof and stopped attending school.

“The police did not file the FIR for two days after we found out what had happened. It was recorded only after the local media started reporting it,” says Kamla Devi*, Disha’s mother. The harrowing journey of police complaints, medical tests, and finally the court trial began for the family.

As per the POCSO Act, each court is supposed to have designated courts for trying POCSO cases, so that the trial finishes in a year. The child’s statement has to be recorded within a month of the FIR and the courts have to appoint special public prosecutors (SPP) exclusively for POCSO cases.

In the courts, to prevent the children from coming in contact with the abuser, there have to be separate rooms with audio-visual facilities where the child can record his or her statement. The courts also have to provide separate entry, toilet facilities and waiting area for the children. The policemen have to dress in plain clothes. The child must also be provided help of a support person who can accompany him or her throughout the legal procedures.

During the trial, the questioning of the child has to be done only through the judge. The lawyers cannot directly ask the children any questions. And in-camera trials are mandatory in all POCSO cases.

Kamla Devi explains how these provisions remain only on paper.

“There was no separate room. The lawyers questioned my daughter directly and asked her to describe how the accused raped her, which body part he inserted where,” she says.

While hearing the matter in the top court, CJI Gogoi, when informed that Saket court in Delhi has two exclusive POCSO courts, said that he was referring to “those courts in certain states where privacy means drawing a curtain between the victim in a POCSO court and the accused”.

In Disha’s trial, there was not even a curtain drawn between her and her abuser. There was no in-camera trial.

“First she was raped by her own teacher, who is now out on bail and back in the village. Then the villagers pointed fingers at her. And in the courts, she had to narrate every small detail of the abuse in front of everyone,” says Kamla Devi.

Seven years after the POCSO law, the infrastructure in court complexes is appalling.

In 2013, advocate Gaurav Bansal filed a PIL in the Delhi High Court on the lack of facilities for POCSO courts. He found that in the Rohini court, as on July 2016, a total of 505 POCSO cases were pending due to non-availability of special public prosecutor. The court admitted that the inflow of POCSO cases was “huge”.

For all of East, North East and Shahdara districts, only one witness room was available because of which recording more than two witness (or victim) statements in a day was not possible.

In the same period, the POCSO court in Tis Hazari was also dealing with CBI matters, other general sessions cases, SEBI cases, criminal revision and criminal appeal. No SPP had been deputed in the court and the POCSO matters were being taken up by the regular public prosecutor attached to the court. A total of 455 cases were pending, out of which 285, or 63 per cent, were POCSO cases.

It added that the court had only one vulnerable witness room (audio-visual room) which is why the cases cannot be completed within one year as required by the law. “Victims have to be examined in-camera in a vulnerable witness room. This recording of testimony takes time and, as a result, other matters get held up,” it noted.

In the Dwarka court, 357 POCSO cases were pending. Besides these, 50 other cases of murder, dowry death, robbery and dacoity were undecided. The court noted that given the pendency of cases and other factors, it is not possible to record the testimony of a child victim within 30 days of taking cognisance. It is also not possible to complete the trial of each case within one year.

“The Patiala House Courts still doesn’t have a witness room,” says Bansal. In Saket court, 360 cases were pending with only one case that had reached the stage of final argument.

Things have moved little since 2016. In 2018, the National Law School of India University (NLSIU) released a study after analysing the implementation of POCSO Act in five states – Delhi, Maharashtra, Andhra Pradesh, Assam and Karnataka. It found that none of the special courts currently established exclusively try POCSO cases, even though they have been designated as special courts under the Act.

Similarly, the SPPs are not exclusively working on POCSO cases due to increased workloads. They often lack training on how to question and communicate with a child and meet the child only on the day of the hearing, failing to build any trust.

The study also found that most courts do not have separate waiting rooms or entrances for victims, making it highly likely for the victim to face the abuser and the lawyers. Audio-visual facilities and separate rooms for children are rarely available.

“Except for the Saket and Karkardooma courts in Delhi, questions are almost always posed by the defence lawyers and the prosecutors to the child directly. The judge intervenes only when the child does not understand the question, or when the question is posed in a particularly aggressive or hostile manner,” the study notes.

Fallouts of these inadequacies are long pendency of cases, lengthy trials, victims turning hostile and high rate of acquittals.

III
‘Fake cases’ and acquittals

“Whenever you try to create something special in a rotten system, a vertical is created which will also not function properly,” says Anant Kumar Asthana, an expert on child rights law.

He explains how the problems of the courts, police, medical facilities and forensic laboratories, which are all functioning with bare minimum, have not been addressed.

In the courts, the SPPs do not even get rooms to sit or to store documents. Their salaries are not paid for months and the caseload on them is “inhuman”. When a child victim approaches a police station, his or her statement has to be audio recorded. The police stations do not have recorders, Asthana says.

“Ideally, samples have to reach forensic labs within 72 hours of collection. But it never happens. If the victim had a termination of pregnancy, where will she keep the foetus? It goes to the labs after 72 hours,” explains Kumar Shailabh, co-director of Haq: Centre for Child Rights, a non-profit that provides legal support to children who have suffered sexual violence.

Counselling, another crucial support which the children must be provided at every step, is absent. With all good intentions, Shailabh explains, the legal procedure for POCSO cases is such that the child ends up narrating the trauma to a minimum of 12 people. These include family, police, doctors, lawyers, counsellors, child welfare committee members, support persons and judges.

The Delhi Commission for Protection of Child Rights (DCPCR) this year studied 100 child victims and found that there is high degree of post-traumatic stress disorder among girls with symptoms such as disturbance due to distressful memories, difficulty in concentration, feeling cut off from others, aggressive behaviour and anxiety and sleep disorder.

Also, almost 81 per cent parents from their sample of 100 families were unable to meet healthcare challenges of their children due to lack of money. Over 90 per cent families were economically poor with Rs 20,000 or less as monthly income.

At least one in every two families earned less than Rs 10,000 a month. About 43 per cent of the families were wage labourers and, therefore, attending regular court hearings was difficult for them.

Moreover, 26 per cent of the child victims suffer from physical illness that can be linked to rape, the study observed.

In Delhi, rape victims can get up to Rs 5 lakh as compensation. For children, the amount can be increased by up to 50 per cent. But DCPCR found that only one child had received the highest amount, of Rs 50,000.

Eighty-five per cent of the victims did not receive any compensation at all. Of these, 60 per cent of the families were not even aware that they were entitled to compensation.

“In most cases of POCSO, the victim's family ends up settling with the accused because of lack of compensation. Ultimately, there are medical needs, there are education needs, and the families simply cannot afford it. Out of options, even in the most brutal of cases, they end up taking whatever money is available to them and settle,” explains Kaur.

The NLSIU study found that several judges, prosecutors, and police officials were of the view that victims who turn hostile should not receive compensation. “Since majority of the cases in all five states ended in acquittal, compensation to the victim was not even considered despite the fact that injuries or pregnancy were on record,” it noted.

It is in this broken system that 16-year-old Neha Dwivedi* has survived two rapes, two suicide attempts, an attack on her life and constant threats to her and her family.

She was 12 when she was first raped by a boy from her neighbourhood in Jhansi, Uttar Pradesh. For a year before the assault, he used to tease her, but neither the boy’s family nor the villagers stopped him. The police refused to file an FIR after rape, as the family had approached them eight days after the incident.

Two years later, he raped her again. This time, he also beat her badly. Covering her bruised and bloodied body barely by torn clothes, Neha’s parents took her to the police station immediately.

“For three days, the police made us sit at the police station and did not register any FIR,” says Madhu Devi*, Neha’s mother. The girl was sent for medical examination 10 days later, after the family insisted. “No examination of her internal injuries was done,” alleges Madhu.

Trial in her case started this year – four years after the first assault. Even today, if Neha sees men in police uniform, she ducks. She has developed fear of men in khaki, explains her mother.

These long delays in cases going to trial and shoddy investigations then become reasons for the cases collapsing in courts, say experts.

“The trial takes a very long time and the children don’t remember the details of the incident,” says Mathur. The lawyers of the accused then take advantage. They say that police statement is different from magistrate statement, she explains.

The NLSIU study has similar findings: “Long delay between the date of the incident or when it was reported, to the time of taking testimony, gives the accused a chance to apply pressure, threaten or coerce the victim.”

An assessment of 193 cases which Haq has assisted from 2013 to 2019 shows that in more than 42 per cent cases, time taken to record the child’s statement from the day of reporting the crime is between three and nine months. Only one case was recorded within a month, as the law mandates.

“The mothers pressure the children not to speak against the fathers.”

In seven years, only 23 out of 193 of their cases were disposed of, and in 57 per cent of those, it took more than two years for the case to be disposed of. Only 35 per cent cases led to convictions. Acquittals were in 52 per cent cases. In another Delhi-specific study, Haq found that acquittals were as high as 78 per cent.

It is out of the fear of re-traumatisation of facing the abuser that the victims may turn hostile in POCSO cases. It then leads to high rate of acquittals, the NLSIU study notes.

Another big reason why children turn hostile is when the abuser is known to the child. The NCRB 2016 report finds that this was true for almost 95 per cent of POCSO cases.

An SPP in Delhi, who did not wish to be named, explained how in cases where the abuser is the father, the chances of the victim changing the testimony in court are extremely high.

“The mothers pressure the children not to speak against the fathers,” he says. Such cases then lead to acquittals or, what he calls, “fake cases”.

He is certain that if the children are provided conducive environment in courts, instead of raising the bar of punishment to death penalty, the conviction rates will go up drastically.

Shailabh explains how there is immense pressure on the child to not report as it is. With the death penalty, the chances of the child succumbing to pressure and turning hostile in courts shoot up.

“Death penalty has never acted as a deterrent in any crime, anywhere in the world,” says the prosecutor. He adds that with this punishment, the POCSO caseload will not reduce, but will only move to higher courts in the form of appeals.

Pendency, after all, is not a problem of only POCSO cases. It is the general capacity of the courts that is lacking, says Asthana.

(*Names changed to protect identity)

Credits

Additional Reporting & Production by — Fazil Khan
Illustrations By — Mir Suhail