New POCSO Act retains clause “sexual assault on child in course of communal and sectarian violence”

Hate crimes against marginalised communities have seen a steady upsurge in India in the past two decades, with the highest number of reported crimes being against Dalits and Muslims and most common alleged motives driven by caste, gender, and religion. It is especially heartbreaking when children become the victims of hate crimes.

The recently passed amended POCSO (Protection Of Children from Sexual Offences) Act when discussed in Rajya Sabha, had an amendment which removed the existing clause on “aggravated assault- in the course of communal and sectarian violence” and sought to replace the words ‘communal and sectarian violence’ with just ‘violence’. This deletion was debated and opposed by several MPs including Abir Ranjan Biswas (@ pg 89) ; Jharna Das Baidya (@ pg 114) ; T.K.S. Elangovan (@ pg 125), Sasmit Patra (@ pg 136).

Sh. Abir Ranjan Biswas was particularly on point when he debated that, “The clause classifying ‘sexual assault on child in course of sectarian and communal violence’ as aggravated penetrative sexual assault has been substituted in this Bill by ‘violence during natural calamity’. These categories of offences are not comparable. The purpose of this substitution is unclear, especially in the times of communal unrest that the country stands witness to.”

The Bill was duly amended with The Minister for Women and Child conceding and agreeing to retain the term “communal and sectarian” and also add to it “or during any natural calamity or in similar situations”.

The POCSO Act was originally passed in 2012 to provide a robust legal framework to protect children (defined as anyone below 18 years of age) from sexual offences. Exploitation and trauma inflicted on women and children during communal violence in India has been witnessed during Partition, during the 1984 Anti-Sikh riots, communal clash in Muzzafarnagar, Gujarat riots of 2002 (heavily documented by the Concerned Citizens Tribunal (Gujarat 2002) and Human Rights Watch with evidence of as many as 250 women and girls being victims of “gross sexual crimes” and unofficial estimates pointing to a much higher number of victims).

It is imperative then, that POCSO recognizes the sexual offences inflicted during “communal and sectarian violence” and thankfully the clause has been retained and the amended POCSO Act recently passed by Lok Sabha.

The question arises, why are children targeted in high numbers for sexual assault during violent circumstances? Sabrang India spoke to criminologist Rashi Vidyasagar who clarified, “Children are highly susceptible to grooming. Grooming allows someone of authority to manipulate children. By sexually assaulting a child of the other community, one is also claiming authority over the bodies of the most marginalised section of that community. Young children are in ‘need of care and protection’ during circumstances like natural calamities, sectarian and communal violence. Assaults against children during these times are especially sinister. ”

Children represent the most vulnerable section of our society. Their consent and rights are refuted everywhere they go, be it forcing them to hug “uncle/aunty” or corporal punishment by teachers. They are told to keep quiet and “obey their elders”. This makes them prone to psychological subjugation having had a vague fear of adults in authority. Being physically smaller and lighter, they are easier to overpower physically as well. Such factors leave them especially exposed to exploitation during circumstances of targeted violence against communities.

Rape of women and children was and is used as an instrument for the subjugation and humiliation of a community. The idea of the “honor” of a community residing in the sexual purity of its female population and claiming “ownership” of “their women” is responsible for the historic use of rape as an inherent war tactic all over the world. International Criminal Tribunals of United Nations have included rapes as war crimes and charged sexual violence during acts of war as “crimes against humanity”.

Despite the overwhelming number and the nature of sexual crimes inflicted on children during communal violence in India, many of our elected leaders have displayed extreme callousness on various occasions. During a parliamentary debate on Gujarat on April 30, 2002, for example, then Defense Minister George Fernandes stated: “There is nothing new in the mayhem let loose in Gujarat… A pregnant woman’s stomach being slit, a daughter being raped in front of a mother aren’t a new thing.”

Such statements and tactics to normalize violence are a regular feature of our 24 hour news cycle in contemporary India. The “death penalty for aggravated sexual assault” in the new POCSO Act was widely celebrated in the media. What a death penalty means in terms of actual impact of discouraging perpetrators from committing such acts remains to be seen. It could in fact be argued that it could lead to lower reporting and conviction rates. The perceived certainty and moral dilemma of condemning the perpetrator to death could lead to law enforcement, parents, and judiciary being reluctant. In depth research on ground can only show what the impact would be. Penalties may do nothing to deter perpetrators when the actual etiology of patriarchy and impunity afforded on the basis of gender, caste and religion remain intact.

The POCSO Act had defined the stand-alone section on “aggravated sexual assault” to recognise the special coercive circumstances in which the sexual violence is committed. The purpose of retaining the words “communal and sectarian violence” in the clause is also to ensure the sexual crimes deployed during communal attacks, caste atrocities, and riots are documented as such for what they actually are. The narrative cannot and should not erase communal motivations to appease any factions. As a nation, we have a duty to prioritize and protect children.

Kirthi Jayakumar, Founder and CEO of Red Elephant Foundation, told Sabrang India,

“We must make society see that they are stakeholders in a future that starts from investing in the protection of children. This means involving the ecosystem in any theory of change – parents, teachers, care providers and others engaged in the child’s every day activities. Prioritizing comprehensive engagement is in itself a peace building activity. If it takes a village to raise a child, it takes a nation to equip that village to provide for the child. Fundamentally, harm and violence create trauma. This can be physical, mental, emotional, and psychological, and this can have both long-term and short-term impacts that need to be addressed for the child to heal in a wholesome fashion. Children can exhibit injuries, they can show behavioral differences such as by acting out or being withdrawn or developing an aversion to particular activities. They may also find themselves being challenged to cope with the emotions that come up after what they faced.”

Survivors of child sexual abuse can suffer from a range of physical and mental health issues. For some, recovery takes a lifetime. It is up to lawmakers and citizens alike to protect children from being pawns in hate crimes. The retention of “communal and sectarian violence” clause in POCSO Act is one such measure to hold perpetrators accountable. It is a sad, fearful, and violent world we are raising our children in, and we must advocate for their rights at every avenue. They deserve to live in a world free of strife. They deserve to live in communal harmony. After all, they are the ones who can pay the highest price for the intolerance preached by adults.

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