In 2020, minor victims of sexual assault by their headmaster in Sivaganga district were reportedly threatened to give false evidence in court, in favour of the accused. The headmaster of a panchayat union school had reportedly sexually assaulted the minors on the school premises in 2015. A routine review of the cases registered under the Protection of Children from Sexual Offences (POCSO) Act brought to light that the headmaster and a woman Special Public Prosecutor had reportedly threatened the victims. A case was registered against them.
The mother of a differently abled girl with mental retardation from Thoothukudi district had to move the Madurai Bench of the Madras High Court for relief. The girl was sexually assaulted by her neighbour. Both interim compensation and compensation were awarded following directions from the High Court. The court observed that a separate fund — Tamil Nadu Child Victim Compensation Fund — had been established under the POCSO Act to provide interim compensation and compensation to victims. The court directed the Thoothukudi Legal Services Authority to award a compensation of ₹14 lakh from the fund. At a Mahila court in Pudukkottai district, while evidence was recorded in a POCSO Act case, the child’s name was typed in the deposition form, without the mandatory provision to conceal the identity of victims being followed. Taking note of the lapse, the Madurai Bench of the Madras High Court observed that the trial courts must adhere to the provisions.
Supreme Court ruling violated
Despite the Supreme Court ruling that any person conducting the two-finger test on sexual assault survivors will be guilty of misconduct, a 16-year-old girl of Pudukkottai district was subjected to the test. The High Court, which was hearing the criminal appeal in the case, directed the State government to ban this test on sexual offence victims by medical professionals forthwith, as directed by the Supreme Court. These are only some of the cases in the recent past that highlight the procedural lapses and the mandatory provisions being ignored in the implementation of the Act. Advocates and activists say that while the pendency and conviction rate is a matter of concern, the lapses in the compliance with the mandatory procedures are a bigger problem.
The POCSO Act was enacted in 2012 to protect children from sexual assault, sexual harassment and pornography. It also provides for establishment of special courts for trial of such offences. Under the Act, a child’s right to privacy and confidentiality should be protected and respected by every person by all means through all stages of the judicial process.
In 1992, India acceded to the United Nations Convention on the Rights of the Child, which prescribes standards to be followed by all parties to secure the best interests of the child. The Act has laid out elaborate procedures. The statements should be recorded in simple language so that the child understands the contents that have been recorded. The statements of the child should be recorded at his or her residence or at the place of his or her choice, as far as practicable, by a woman police officer. While recording the statement, the police officer should not be in uniform. Steps should be taken for the care and protection of the child. The Act calls for establishment of special juvenile police units.
The medical examination should be conducted in the presence of a parent of the child or any other person the child trusts. When a parent cannot be present, a woman nominated by the head of the medical institution shall be present. In the case of a girl child, a woman doctor should conduct the test. The Act calls for the establishment of special courts for ensuring a speedy trial. The Supreme Court has directed that at least one special court be established in every judicial district that has 100 to 300 cases pending under the Act and two special courts in districts that have more than 300 cases pending. The special courts are required to be child-friendly and create a child-friendly atmosphere during trial. It must be ensured that the child is not exposed to the accused during trial. The Protection of Children from Sexual Offences Rules, 2020, have introduced stringent punishments for the offences.
Are mandatory procedures being followed?
Advocate U. Nirmala Rani of the Legal Aid Centre for Women, Tamil Nadu, says that while the reporting of such cases has improved, whether the provisions and the child-friendly procedures, mandated under the Act, are being followed is debatable. The process could be split into five stages, says Advocate R. Alagumani: registration, investigation, trial, judgment, and compensation. At the stage of registration itself, there are hiccups. While the reporting has improved, ‘Katta Panchayat’ (kangaroo courts) involving the police are held in remote and rural areas, and no complaints are registered. Sometimes village elders ‘resolve’ the issues.
After crossing the hurdles, there is investigation and filing of charge sheet, which should be done within the mandatory period. With the High Court issuing directions to the trial courts and the police, there is an improvement in conviction, and the pendency has reduced to a certain extent, Mr. Alagumani says.
Ms. Nirmala Rani says the approach of officials and the choice of words used during the interaction with victims are very important. They should help to instil confidence in them to give their statements. However, officials are insensitive in their approach sometimes and focus only on completing the procedures. She says that even those children who don’t feel the stigma are made to feel uncomfortable.
Referring to a case she had dealt with at Melur in Madurai district, where a headmaster had sexually assaulted students, she says Child Welfare Committee members were sidetracking the issue during the interview. Questions were posed about irrelevant issues, such as infrastructure on the school premises. The child should be made comfortable during the process and what was relevant should be recorded.
Vidya Reddy, of Tulir, Centre for the Prevention and Healing of Child Sexual Abuse, stresses the importance of how the process of handling a POCSO Act case needs to be an enabling experience for survivors and families. “This is especially needed when an alleged abuser is less than 18 years of age, and as children in conflict with the law, the case is handled by the Juvenile Justice Board (JJB). Enabling procedures that are followed in regular courts or in special POCSO courts are missing here, and aren’t children who are victims in these cases entitled to them as well,” she asks. Rooms that are conducive for children, for instance, are a feature in some POCSO courts. Ms. Vidya, however, points out that even the location of JJBs in some districts is a matter of concern: they are situated in crowded commercial complexes, let alone have any child friendly facilities.
In one particular case, Ms. Nirmala Rani says, the children were taken before the magistrate for the statements to be recorded. However, the magistrate was occupied with another case and the children had to wait in the court campus. It took a while before the statements were recorded. The statements could have been recorded in the school itself or at any other place that the children were familiar with. The children were intimidated by the unfamiliar premises. More child friendly courts are required, she says.
The Supreme Court’s direction in respect of the number of courts in the districts — that at least one special court be established in every judicial district that has 100 to 300 pending cases and two special courts in districts that have more than 300 pending cases — is yet to be complied with fully.
Need for nodal officers
Devaneyan, director of Thozhamai, a Chennai-based NGO, says it is time for a review of the Act and its implementation. Nodal officers should be appointed to ensure that the procedures are followed as mandated by the Act. The appointments to the Tamil Nadu State Commission for Protection of Child Rights and the Child Welfare Committees should not be based on political affiliation. Experts, especially those who deal with child rights, should be considered, he says.
Though the Standard Operating Procedures are in place, the police officials are sometimes burdened with other cases, and such sensitive cases are also handled like any other case. Dedicated special police units should be established, says Ms. Nirmala Rani. She suggests that one-stop centres be opened to offer integrated services. Counselling too requires attention, and as in the case of judicial officers, regular training should be given to other officials.
Mr. Alagumani says attention to the provision of appropriate compensation and interim compensation and rehabilitation of victims is essential. Sometimes, the compensation amount is not sufficient, he says.
‘Create awareness’
Advocate T. Seeni Syed Amma says that not many are aware of the provision under the Act that the family or guardian of the child could engage counsel of their choice as in the case of the Scheduled Castes/the Scheduled Tribes (Prevention of Atrocities) Act. More awareness of this provision should be created. In fact, the Act mandates the Centre and the State to give wide publicity to its provisions.
Apart from this, the Act states that the State government should prepare guidelines for use of non-governmental organisations, professionals and experts to be associated with the pre-trial and trial stages to assist victims, she says.
(With inputs from S. Poorvaja).
