In a recent study the Centre for Child and the Law of the National Law School, Bengaluru , found out that the special courts set up under the Protection of Children from Sexual Offences Act (POSCO) has revealed low conviction rates with victims turning hostile and trials being delayed.
The report looks at 172 judgements that were passed in Assam over a three-and-a-half-year period ending August 2016. The research team also conducted 32 interviews with prosecutors, judges, victims and others. The report painted a bleak picture of the implementation of the special law introduced in 2012 for the protection of children.
The report found that the conviction rate under the Protection of Children from Sexual Offences Act was 24.4% in Assam over the period examined, with victims turning hostile in 32% of the cases before the special courts.
The Government of India enacted the Juvenile Justice Act in 1986. In 1989 the General Assembly of the United Nations adopted the Convention on the Rights of a Child. India ratified the UNCRC (UN Convention on the Rights of the Child) in 1992. The convention outlines the right of the child to reintegration into society without judicial proceedings where avoidable. Hence the Government, to fulfill the standards of the convention felt a need to re-write the law. Hence in 2000 the old law was replaced by the Juvenile Justice (Care and Protection of Children) Act.
In this act a child or juvenile is defined as a person who has not completed his/her 18th year of age. It outlines two target groups: Children in need of care and protection and Juveniles in conflict with law. This act protects not only the rights of children, but a person’s rights when he/she was a child. Meaning that if a crime or an incident took place while the person was a child, and then during the proceeding the juvenile ceased to be of age the case would continue as if the juvenile has not turned eighteen yet.
The second chapter of the Act addresses Juveniles in Conflict with Law (JCLs). This section calls for the establishment of Juvenile Justice Boards (JJBs). When a police officer comes in contact with a juvenile he must place the child with the Special Juvenile Police Unit (SJPU) who must report the child to the board without delay. Bail is available to juveniles in all cases as long as the Board find the release of this child will not place him in any danger or in the influence of criminals. If the child is not released on bail he is only to be placed into the custody of an Observation Home. The SJPU are responsible for informing the juvenile’s parents of the arrest, as well as inform the Probation Officer who will make the necessary enquires about the child.
But , a report prepared by Asian Centre for Human Rights (ACHR) highlights emblematic cases of systematic and often repeated sexual assault on children in juvenile justice homes. Out of the total 39 cases, 11 cases were reported from government-run juvenile justice homes such as observation homes, children homes, shelter homes and orphanages, while in one case a CWC member was accused of sexual harassment during counselling sessions.
The remaining 27 cases were reported from privately/NGO run juvenile justice homes such as shelter homes, orphanages, children homes, destitute homes, etc. Majority of privately/NGO run homes are not registered under Section 34(3) of the Juvenile Justice (Care and Protection of Children) Act, 2006.
Now, getting back to the study by the Centre for Child and the Law of the National Law School,it was found that children were less likely to turn hostile when their statement was recorded within six months of the crime being registered. The percentage of children turning hostile increased to 40.42% in cases where it took six months to a year to record the evidence, and touched 48.78% when it took between one and two years from the date of the FIR.
Children turned hostile in various ways: saying that the offence hadn’t occurred, that the accused hadn’t committed the offence or that they were not children at the time.
For instance, in one case, a girl said she had merely been slapped and not assaulted by the accused. In another, a victim said her father used to misbehave at home, but said nothing about sexual abuse. In yet another case, a victim said the person who had impregnated her was not the person who was the accused.
As is common in such cases, the accused was known to the victim in 78% of the cases.
In cases referred to as “romantic cases” where the two were in a consensual relationship, 25 out of the 27 accused persons were acquitted. Though consent given by a person below the age of 18 does not count as consent legally, the courts tended to deal with such cases using their discretion.
There were certain local peculiarities observed in the findings. For instance, those living in the tea growing regions in Dibrugarh district of Assam were especially reluctant to take offences to the police. Instead, the report noted, people often approached the village head or tea estate manager before approaching the police. “These complaints have been filed only if the settlement was not amicable,” it said. “It emerged during the interview, that families are pressurized to compromise. In cases where the girl is pregnant, the families inevitably compromise and get her married to the perpetrator.”
The Ministry of Women and Child Development in its official website had also stated that it has taken steps like the scheme of Gender Champions which sensitizes on laws, legislations, legal rights and life skills education. The objective is to catch them young and ingrain gender equality during their formative years. But with the increasing incidents of sexual abuses of children and minors, in the region, the lack of capacity building of police and other social stakeholders is a serious concern. Under a social setup where families donot even come forward to report molestation and sexual offences, it is a a very important to raise legal awareness at the earliest.
– Compiled by Payal Bhattacharjee with inputs from Scroll.in and official website of The Ministry of Women and Child Development.