On October 10, 2022, a person accused of raping a minor girl, who was 17 years old, under the POCSO act was granted bail by the Allahabad High Court on the condition that he marry her within one month and award her and his child all of his rights as wife and daughter. The prosecutrix and her father’s stance that they had “no objections” to the accused’s release on bail served as the foundation for the decision of the Bench of Justice Dinesh Kumar Singh to grant him bail. The Court also noted the fact that the Girl had already delivered a child from the accused applicant.

In the facts of the present case, the prosecuterix stated that she was allegedly lured away by the accused-applicant in March 2022 when she was just 17 years old, according to charges made under Sections 363, 366, and 376 of the IPC and Sections 3/4 of the POCSO Act. After that, the prosecutrix gave birth to a girl.

The prosecutrix and her father stated before the court that they had no objections if the accused-applicant was granted bail as long as he married the prosecutrix in accordance with Hindu rites and rituals, had their marriage officially recognised, and granted all rights to prosecutrix and the child as his wife and daughter.

However, bail has been granted on condition that after he is released from jail on bail, he will marry the prosecutrix within 15 days of the date of release and have the marriage registered before the appropriate officer within a month of the date of the marriage. He will also give ‘full rights to the prosecutrix and his child as wife and daughter’.

The order can be read here.  

This present order comes after a plethora of judgments have been passed by various courts in the recent times, where the judges are finding creative ways to interpret provisions criminalising and penalising offence of sexual assault against women and children. These judgments leave the victim with no agency, apart from diluting substantively the notion of justice.

For the longest time, deeply patriarchal notion that act of sexual assault rather than be seen as an act of violence and dominance by a man/ accused. Is something that ‘just happens’ to the woman/child/survivor or brought on because of dress or behaviour. An extension of this, is that the Survivor is treated as one who needs to be ‘saved’ or ‘redeemed’ through marriage, that too by the person who committed the crime.  Deeply prejudicial notions to independent agency and justice are also reflected within the judiciary. Often even in the past, in cases where the accused where convicted, the tone deaf language and approach used in the judgments shatters the objective behind such convictions.

The Protection of Children from Sexual Offenses Act, 2012, often known as the POCSO Act, is gender-neutral and acknowledges that both boys and girls can be survivors of sexual abuse. The Act contains stringent penalties attached to each of the offenses mentioned and substantially enlarged the scope of what constitutes a sexual offense against a child. It also added penalties for those in positions of trust, such as public employees, academic staff, and police officers, and expanded the definition of sexual assault to include both mild and severe penetrative assault.

The amended law on sexual assault, 2013, (Criminal Law Amendment Act, 2013), followed the nationwide outcry on the Nirbhaya mass rape and also known as the Nirbhaya Act, it amended the law around rape/sexual offences (sexual assault) under the Indian penal Code (IPC), Indian Evidence Act and Code of Criminal Procedure (CrPC). Gender neutral, the amendments not only included within offences for sexual assault, offences like acid attacks, voyeuristic crimes, sexual harassment at the workplace but also re-define sexual assault/ rape from the arcane limited definition of ‘penetration.’

Both under POSCO and the Nirbhaya Act, while some judicial pronouncements have reflected this refined understanding of reality reflected in the new laws, every so often, a judgement or judgements pronounced even by India’s constitutional courts (High Courts or the Supreme Court) are reflective of the entrenched archaic and patronizing views even within the Indian judiciary.

The question that arises is, who has given the courts the power to suggest any compromise (marriage or any other) between the survivor and the accused?

Problematic judgments in cases of sexual offences against Women and Children:

1. In the year 2020, Madhya Pradesh High Court released a person, apprehended for outraging the modesty of a woman, on bail provided that he visits the house of the complainant and requests her to tie the Rakhi band to him “with the promise to protect her to the best of his ability for all times to come.” This decision was given in a matter whereby the applicant as a neighbour had entered the house of the complainant and caught hold of the hand of the complainant attempting to outrage her modesty.

The court bail order stated: “(i) the applicant along with his wife shall visit the house of the complainant with Rakhi thread/band on 03rd August, 2020 at 11:00 am with a box of sweets and request the complainant Sarda Bai to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/- (Rs. Eleven Thousand Only) to the complainant as the customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant-Vishal for purchase of clothes and sweets”

Pursuant to this, Supreme Court advocate Aparna Bhat and eight other women lawyers challenged this bail order before the Apex Court. The Supreme Court, while overturning the bail conditions in the present case, framed various guidelines. One of the guildelines were to ensure that bail conditions must precisely adhere to the stipulations of the Cr.P.C., and the order shall not represent patriarchal attitudes toward women. Any offer to the accused and victim for a compromise, such as getting married or mandating mediation, should be ignored since it is outside the court’s authority.

The petition filed by Aparna Bhat and others can be read here.

The order can be read here.

2. The Apex Court has often –though not always–looked askance at cavalier attitude of the lower courts and attempted course correction. It has been established in a plethora of judgments like the State of M.P v. Madanlal that compromise must never be brought into the picture while dealing with rape. But in the year 2021, the then CJI, Sharad Arvind Bobde, offered the POCSO accused a chance for bail if he agrees to marry the minor survivor. In the case of Mohit Subash Chavan v. State of Maharashtra was met with consternation and criticism after he reportedly asked the accused, a government servant, whether he would be willing to marry the victim, a minor, after she was raped. “If you want to marry we can help you. If not, you lose your job and go to jail. You seduced the girl, raped her,” the then Chief Justice of India S.A. Bobde had reportedly told the accused person’s lawyer.[1]

3. The controversial case of the Bombay High Court, single bench, Justice Pushpa V. Ganediwala when she acquitted a 32-year-old man of charges under Section 7 and 8 of the POCSO Act, holding that the offence of sexual assault was not made out because there was no “skin-to-skin” contact, bears mention. Sexual assault is defined in Section 7 of the POCSO as any non-penetrative sexual contact with the victim survivor, similarly generated outrage. In this case, the accused-appellant was accused of “pressing the breast” of the 12 – year-old prosecuterix, a fact that the prosecution demonstrated by adducing both circumstantial and direct evidence.

Despite this, however, the Court held that Section 7 conditions were not met because the survivor’s garments were not removed, and the appellant was unable to remove her underpants because she screamed, and bolted the room from the outside when the assailant accused sought to do so. The act of the appellant would, at best, be an act of “outraging the modesty of a woman” as defined in Section 354 of the IPC, according to the Court. The judge further stated that the punishment imposed under Section 8 of the POCSO, which prescribes a punishment for a term of 3-5 years and fine, for the offence outlined in Section 7 is “disproportionate” when compared to the gravity of the act and hence upheld the conviction only under Section 354, IPC. This order was, again, following sharp criticism and outrage, stayed by the Supreme Court.

The order can be read here.  

4. In another incident, the Madhya Pradesh High Court granted two-months bail to an accused in a rape case to enable him to ‘marry the victim’. The victim complainant had filed a rape case against the accused under sections 376 (2) (n) and 506 of the Indian Penal Code and sections 3(I), (W-II), 3(2)(V) and 3(2)(V-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Meanwhile, in another rape case in the year 2021, the Kerala High Court observed that when the magnitude of the rape is so grave and heinous to shock the sense of justice, a settlement between the victim and accused and a marriage subsequently between them should not be matters for consideration to quash the proceedings against the accused. This later judgement holds out some hope.

5 In the year 2020, Madras High Court judgment (Madurai Bench), the accused was granted bail after impregnating a minor girl as he said he was willing to marry the victim once she attains majority. The FIR in the case was filed under Sections 5(l), 5(n), 5(j)(ii) and 6 of the POCSO Act. The judgment noted that if the petitioner fails to register the marriage, the respondent police could proceed against him in accordance with the law. The accused told the court that he and the victim were closely related. According to him, they fell in love and had sexual relations.

Clearly, even Judges are not the ‘outside other’ but part of a very patriarchal society.  Judges come from the social location of caste, class (presumably upper) household within this. Still, given by serious attempts in the legislative process –influenced by voices from the women’s movement –to affect a shift and change in attitude, it is crucial that the agency and autonomy of the woman needs to be central to all interventions and judgments.

Love Relationship Angle in POCSO cases:

Even though, in the aims and objects of this Act, the “consent of the minor child” is not supposed to determine facts or application of the law, courts, while adjudicating have been giving age some consideration.

In a judgment passed by the Delhi High Court in the year 2020, in the matter of Dharmander Singh @ Saheb vs State, bail was granted to the accused while taking into account the potential for a reciprocal physical contact between the underage victim and the accused. The age difference between the two, the physical intimacy shared between the accused and the prosecutrix, as well as lack of brutality or violence were also taken in factor.

In a different instance, in the year 2021, the Meghalaya High Court ruled that although a minor’s consent is not legally legitimate, it is nonetheless important to keep in mind while the court is debating a bail request. The said case was of a minor and a nineteen year old who were involved physically. The court had considered the factor of two teens in “romantic love” while granting bail to the accused.

In yet another “consensual” relationship case, the Calcutta High Court cleared the defendant by interpreting a POCSO Act clause so that it no longer applied to situations in which sexual activity was voluntary. In this instance, the high court noted that the Act was created to provide protection to innocent children from sexual offenses and that a strict reading of its provisions would only turn it into a weapon for exploitation of the legal system.

In the year 2021, the Madras High Court had observed that the POCSO Act is not meant to punish young people in love relationships. The court acknowledged that a statute intended to protect and bring justice to victims and survivors of child abuse can be abused while also dismissing the criminal charges brought against the defendants in this case. The court observed that a significant portion of cases brought under the POCSO Act appeared to be the result of grievances filed by the families of teenagers participating in romantic relationships, which was never the law’s intended goal.

In February 2022, the Supreme Court had set aside the Jharkhand High Court’s order granting bail to an accused under section 376, IPC and section 6, POCSO. The Apex Court had opined that once prima facie it appears that the prosecutrix was a minor, the grounds that there was a “love affair” between her and the accused and the accused’s alleged refusal to marry would be extraneous for bail.

Pursuant to this judgment, the Karnataka High Court, in August 2022, the Karnataka high court allowed a compromise in a case registered under POCSO considering that the girl who had been allegedly sexually assaulted had married the accused during pendency of the case and also had consented to quashing of the proceedings. The girl was 17 and the accused petitioner was 20 years old when her father registered a POCSO complaint on March 6, 2019. On October 11, 2019, the girl deposed that the acts between her and the petitioner were consensual. They submitted a memo before the high court stating that they mutually agreed to compound the offences alleged and got legally married on November 9, 2020, the very day when he was released on bail after 18 months in judicial custody.

It is the cases such as those listed and analysed here that reflect the contradictions India faces. The fact of each case and the application of the law, be it POSCO or the amended Law on Sexual Assault, the imbalance in understanding of not just the crimes listed but the societal and familial circumstances under which abuse and assault occur, renders a flawed result. Courts then, do not become the automatic—and necessary dispensers of justice – but the witting or unwitting perpetrators of existing attitudes towards women, girls and minors.

The “skin-to-skin” judgment created had, then, resulted in a massive outrage all over the country. 

In the year 2020, The Karnataka High Court noted that it was “unbecoming of an Indian woman” to sleep after she is “ravished”, while granting a pre-arrest bail to a man accused of rape, cheating and criminal intimidation. Prior to this, in the year 2017, the Delhi High Court had overturned a rape conviction against film director Mahmood Farooqui, ruling that a “feeble no” can signal consent, especially in cases where the alleged victim is well-educated.

There have been numerous judgments in the recent past wherein judges have given questionable solutions while dealing with cases of sexual offences. Taking forward the problematic patriarchal notion of attaching a woman’s honor and identity to her body, the judiciary has been prone to giving judgments wherein the accused is given the chance to “absolve” their crime by marrying the victim. Is this what the amended rape laws are country were legislated for? Is it not enough that the survivor has lost her autonomy once while they are being subjected to such crimes, to be once more dealt such a blow from institutions of judgement delivery?

Worse still, if examples these continue to be set, wherein punishment, conviction and or acquittal are at the mercy of attitudinal flaws among judges, less and less survivors or families may be willing to come forward with complaints. While the Supreme Court has often stayed some of the most baffling of such orders given by the high courts, there have been flaws in the apex court’s jurisprudence on this issue too. An urgent need of better judicial training and increased sensitivity when it comes to cases of sexual violence and assault cannot be under-emphasised. Crimes committed against children and women are on the rise and it is essential for us to ensure that everything is done to provide the survivors justice. 

The victims of sexual abuse have always been blamed by Indian society. Women have been questioned repeatedly about their behaviour, clothing choices, attitude, and when they plan to leave their homes. During trials too, judges have frequently reinforced this practice by questioning the victim and sometimes making remarks that stereotype particular behaviour and threaten to disrupt the trial.

Some evidence points to judges’ handling of rape cases reflecting this outmoded perspective. The idea that women need protection and that an unintended pregnancy brought on by rape would wreck their lives is another important justification for using this strategy. The survivor’s parents ultimately give in to pressure to maintain their social standing in order to protect the female’s honor and dignity. Given also that marital rape is not a crime in India, solemnizing rape via marriage has negative effects such as marital rape and violence after marriage. It also gives accused rapists a way to evade the law. The shocking injustice committed by the courts is demonstrated by subjecting the sufferer to more emotional agony.

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A Special Court under Protection of Children from Sexual Offences (POCSO) Act at Dindoshi in Borivali, Mumbai recommended the appointment of ‘Lady Watchmen’ outside public toilets for the safety of women and children who use the public toilets in the absence of such facilities in their own homes.

On April 18, 2022, a Special Judge HC Shende delivered and pronounced the Judgment in open Court in POCSO Special Case No. 356 0f 2016 (State of Maharashtra v/s. Sunil Balwilsingh @ Balbirsingh Rana), sentencing the convict to five years of ‘Rigorous Imprisonment’ for sexually assaulting a minor 7-year-old girl in public toilet.

The Court found the sex offenders guilty of offences under section 354 (Assault of criminal force to woman with intent to outrage her modesty) and 506 (Punishment for criminal intimidation) of the Indian Penal Code, 1860 and under section 9(m) (Aggravated sexual assault – whoever commits sexual assault on a child below twelve years) read with section 10 (Punishment for aggravated sexual assault) of Protection of Children from Sexual Offences Act, 2012.

The Court had not mentioned the survivor’s and her family members’ names in the Judgment to maintain the confidentiality about their identity as per the Rule 33 (7) of POCSO Act.

Brief about the case

The survivor resides with her maternal aunt at Malad (W) in a chawl. The residents of the chawl use public toilets situated in their area. On September 5, 2016 around 1:00 P.M the survivor went to the public toilet. Within 15 minutes she came back crying and scared.

On her way back she met one of the witnesses who brought her home. When he asked her the reason for crying, she told him that the after she stepped out of the toilet, the sweeper lifted her and kissed her on her lips. She started screaming, asking him to let her go. But the assailant threatened her. After reaching home, the survivor narrated the incident to her aunt.

The aunt traced the assailant and he was also thrashed by locals. Thereafter they took the accused to the Samata Nagar police station and registered a First Information Report (FIR) no. 439/16 under section 354, 506 of IPC and under section 8 of POCSO Act against the accused (sweeper) ‘Sunil Balbirsingh Rana’, age 21 years.

The charges were altered by the POCSO Court as the victim was 7-years-old at the relevant time so by deleting the Charge under section 8 of POCSO Act, charge under section 9(m) read with 10 of POCSO Act was framed.

As reported by Live Law, the prosecution examined six witnesses – the child, her aunt, a neighbour, local resident and cops — to seek conviction of the accused.

Court’s Observation

The Court observed from the circumstances of the case, “There is a need to have lady watchman in a toilet or kids should accompany by their near ones just to avoid the kids being getting harassed by any assailant in the said place in such tender age as it would leave a deep scar on their lives which they would carry forever throughout their lives. It is very traumatic and also causing mental harassment to the kids and such incidents are increasing rapidly so the parents must take care of it while sending their kids to the public toilet to avoid further harm.”

The Court further remarked about the open space in the city, “Mumbai being a metro city has the biggest slums with small houses and less space to walk through it. These houses are not bigger than the size of match box as we usually observe and hence, the people here use public toilet made by the government,” adding to it that “these toilets are less in number and not close to everyone’s house so when small kids go to use these toilets, some trustworthy person shall accompany them.”

The Court on observing that the accused has failed to put his case of ‘mistaken identity’, stated, “No theory of enmity in between the family of the informant and the accused was brought on record by the defence. No case of false implication was put up by the defence. No evidence in defence to rebut the presumption available to the victim u/s.29 of POCSO Act put up by the defence.”

The Court laid various questions based upon the charges framed against the accused, evidence on record, the statement under section 313 of Criminal Procedure Code (Power to examine the accused) and the submissions made by the Learned Counsel of both sides.

They were as follows:

Was the victim minor at the time of incident as per the provision of POCSO Act?

The testimony of the survivor about her date of birth is corroborated by the birth certificate produced in the Court that her date of birth is April 23, 2010. The Court in these circumstances stated, “The birth certificate (Exh.23) is stating her date of birth 23/04/10. In these circumstances, this Court has no hesitation  to accept that the  birth date  of  the  victim  is 23/04/10 and on the date of the incident i.e. on 05/09/16 the victim girl was aged about 7 years i.e. below 12 years of age and a child as defined u/s.2 (d) of  POCSO Act.”

The Court relied upon the Hon’ble Bombay High Court’s Judgment dated September 3, 2019 in the Criminal Appeal No.1558/2018 (Shivara @ Balu Khandu   Jagtap vs. State   of   Maharashtra), in which the Court held that the   birth   certificate   issued   by   the statutorily appointed competent authority is relevant and admissible.  The same is the public document and it constitutes primary evidence, proof of contents of public document can be had by production thereby as per Section 77 of the Indian Evidence Act, therefore, no former proof of birth certificate   issued   of   competent   authority   under   the   provisions of Registration of Births and Deaths Acts, 1979 of rules framed there under is required.

Has the act of the accused outraged the modesty of the said victim?

The Court in this case had observed, “Needless to say that what constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter.  The reaction of a woman is very relevant though its absence is not always decisive. Modesty in Section 354 of IPC is an attribute associated with female human being a class though she was of any age.”

For this the Court relied upon the case of State of Punjab v/s. Major Singh [AIR 1967 SC 63], in which the Supreme Court had explained what constitutes an offence under section 354 of IPC. As per the Hon’ble Supreme Court, intention is not the sole criteria of the offence punishable u/s.354 of IPC and it can be committed by a person assaulting or using criminal force to any woman. If he knows that by such an act the modesty of a woman is likely to be affected, knowledge and intention are essentially things of mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be called out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her evidence should receive the same weight.

Why should this Court rely on the sole testimony of the victim girl who is only 7 years old?

The Court heavily relied upon the victim’s testimony and stated, “Cumulative reading of the aforesaid would prove beyond shadow of doubt that it was the   accused who had committed sexual assault on the minor victim aged 7 years at the relevant time. He outraged the modesty of the victim girl and when she screamed, he gave threats to throw her out of the window. It reflects the intention of the accused to cause harm to the victim.”

The Court noted in this issue, “Now it is settled position of law that conviction to accused can be founded on sole testimony of the victim. It needs no corroboration unless it is unreliable, having material discrepancies in it.”

For this the Court relied upon the case of State of Maharashtra V. Chandraprakash   Kewalchand Jain, in which it was held that:

“We think it proper, having regard to the increase in the number of sex­violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime.”

On the request made by the accused and his advocates of releasing him on admonition or bond of good behaviour, the Court stated, “The person who is brought in the Court with such allegation of sexually assaulting to the minor if leniently dealt with by the Court, then it would be an injustice to the victim, it is traversity of justice. It will give wrong message to the society at large and may boost the fear prevailing in the mind of the victim of sexual assault that the courts are also not recognizing their pain so the submission made by the defence to show leniency to the accused is out of consideration according to this Court.”

On the submission made by Advocate for the accused for showing leniency while sentencing as the accused is a poor and working person, the Court stated, “The measure of punishment in cases of child abuse cannot be depended upon the special status of the accused or the victim. It must depend on the conduct of the accused, age of the victim and gravity of criminal act. Protection of society and deterring criminal is the avowed object of criminal law system. This required to be achieved by imposing an appropriate sentence.”

Court’s Judgment

On April 18 2022, Special Judge H.C. Shende under POCSO Act, sitting in Sessions Court, Dindoshi, convicted the accused for the offences punishable under sections 354 and 506 of Indian Penal Code, 1860 and under section 9(m) read with section 10 of Protection of Children from Sexual Offences Act, 2012.

The Judge sentenced the convict as stated in Order:

“The accused Sunil Balwilsingh @ Balbirsingh  Rana  is punished u/s.354 of Indian Penal Code, 1860 and is sentenced to suffer Rigorous  Imprisonment for five years and to pay fine   of Rs.7,000/­ (Rupees Seven Thousand Only), in default of payment of fine, he shall suffer Rigorous Imprisonment for six months.

The accused Sunil Balwilsingh @ Balbirsingh Rana is punished u/s.506 of Indian Penal Code, 1860 and is sentenced to suffer Rigorous Imprisonment for two years.

The accused Sunil Balwilsingh @ Balbirsingh Rana is punished u/s.9(m) r/w.10 of Protection of Children from Sexual Offences Act, 2012 and is sentenced to suffer Rigorous Imprisonment for five years and to pay fine of Rs.7,000/­ (Rupees Seven Thousand Only), in default of payment of fine, he shall suffer Rigorous Imprisonment for six months.”

He further stated that all the sentences must run concurrently.

He further directed, “Accused is on bail. He be taken in custody forthwith.  His Bail Bond, if any, stands cancelled. Cash bail, if any, be forfeited.”

The entire Judgment may be read here: 

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On May 12, 2022 the Orissa High Court presided by Single-judge Bench of Justice V. Narasingh granted bail to a Child in Conflict with the Law (CCL) who had been under custody for almost three and a half years. The Court does not want the accused child to suffer because of apathy of investigating agency.

While hearing the bail application of the CCL, the Bench came down heavily on the investigating agency for its apathetic approach and said, “Proceedings of the High Court cannot be held hostage to the whims of the investigating agency and for their lackadaisical attitude, rights of an accused cannot be marginalized, needs no emphasis.” The Court even suggested for the necessary corrective action to be taken to make the Police machinery more responsive to the needs of Justice.

In this case, the Child in Conflict is an accused in a murder case which is registered with the Bijepur Police Station in Bargarh district. She had filed the Bail Application in Orissa High Court in 2021.

Brief background of the case

The CCL, an accused in a murder case registered at Bijepur police station in Bargarh district, was arrested on December 8, 2018. Since then, she has been under custody. She was charged under section 450, 307, 302, 34 and 120B of Indian Penal Code.

The accused had filed her bail application before the Protection of Children from Sexual Offences (POCSO) Court at Bargarh, which was rejected by Additional Session Judge-Cum-Special Judge, on July 23, 2019. In challenge to the POCSO Court Order, the CCL had filed Bail Application in the High Court of Orissa on June 22, 2021.

This High Court presided by Justice Dash had passed an Order dated, June 24, 2021 in which he directed the Learned Council for the State to obtain the case diary and the report related to the conduct and behaviour of the child in conflict with law during her stay in the observation home for the period, by next date. Since then, the adjournments were sought to produce the case diary.

Court’s Observations

After the Order passed by the High Court dates June 24, 2021, numerous adjournments were sought by the Advocate for the state to produce the case diary.

The Court observed that two letters were sent from the office of the Advocate General dated June 24 and June 28, 2021 to the IIC Bijepur District Bargarh to inform about the production of the up-to-date Case Diary. The concerned authorities did not respond.

Similar letter was sent from the office of the Advocate General dated November 6, 2021 to the Superintendent of Police Bargarh and IIC Bijepur in the District Bargarh. But till date the up-to-date Case Diary was not submitted to the Court.

The Court thus observed, “As noted petitioner is in custody since 08.12.2018 and cannot be allowed to suffer because of the apathy of investigating agency.” The Court also held the investigating agencies responsible for the delay in the matter and stated, “Proceedings of the High Court cannot be held hostage to the whims of the investigating agency and for their lackadaisical attitude, rights of an accused cannot be marginalized, needs no emphasis.”

The Court on observing the repeated adjournments and the Investigating officers were seen not following the Court Orders held, “It is indeed disconcerting that the concerned District police administration have scant regard for the orders passed by this Court and have chosen to disregard repeated communication from the office of the Advocate General for submission of Case Diary for which the Case has to suffer adjournments.” The Court, considering the age of the Petitioner and the time she had spent under custody, constrained itself from granting any further adjournments to the State’s Counsel.

The Court further stated, “It is fervently hoped that necessary corrective action shall be taken so as to make the Police machinery more responsive to the needs of administration of justice.”

Court’s Judgment

On May 12, 2022 while granting bail to the child in conflict with law after perusing the materials on record, the Bench stated, “On a conspectus of the materials on record this Court directs the petitioner to be released on bail on such terms to be fixed by the learned Court in seisin over the matter.”

The Court further requested the Registry to send a copy of this order to Principal Secretary Home Government of Odisha, Director General of Police, Range DIG and the concerned Superintendent of Police for their knowledge and necessary action.

The entire Judgment may be read here: 

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The post Orissa HC grants bail to child in conflict with law after three years in custody appeared first on SabrangIndia.

The Gujarat High Court has reversed the conviction in a case of rape of a 15-year-old minor girl, taking into consideration that the minor girl admittedly ran away from home and consented to the sexual acts. The bench of Justice Paresh Upadhyay observed that “Non-interference by this Court would reduce the lady and two children without shelter of husband / father, which in no way would be in furtherance of justice.”

The appeal was filed against a judgement passed by Sessions Court Junagadh on July 15, convicting the appellant under section 376 (rape) of IPC as well as sections 4 (penetrative sexual assault), 6 (aggravated penetrative sexual assault), 8 (sexual assault) and 12 (sexual harassment) of the Protection of the Children from Sexual Offences (POCSO) Act. He was sentenced to 10 years of rigorous imprisonment and fined Rs. 5,000. 

The counsel for the appellant submitted that he, and the victim are husband and wife, and they have borne two children, a fact undisputed by either of them. He submitted that the conviction is unsustainable and the same be quashed and set aside.

The court considered certain facts:

• The appellant and victim are in a relationship.
• The victim, on her own, had walked out of home with the appellant.
• The appellant and the victim stayed together since then at the house of the appellant, as husband and wife.
• Out of their relationship, she has given birth to two children, one on June 29, 2019 and second on January 22, 2021.
• The victim deposed before the court that the appellant has kept physical relation with her consent.

The court seemed perturbed by the fact that despite they have two children, and victim stating that physical relations were out of her consent, he has been convicted for rape. The court pointed out that the Sessions Court was also conscious of this fact that they are living together and thus any compensation / assistance received from any of the Government(s) need to be refunded.

The court was thus inclined to set aside the conviction order. The court said, “It is under these circumstances, this Court finds that the conviction recorded by the Sessions Court needs to be set aside. Standing at the place of law enforcement agencies, in the peculiar facts of the case, this can be termed as an offence under the Prohibition of Child Marriage Act, which is observed more in breach than in compliance, more particularly in the lower strata of society.”

The order may be read here:

The legal standpoint

While the high court’s order failed to mention any legal points, it is important to look at where the law, especially the POCSO Act stands. The many questions that arise after the court’s verdict to set aside the conviction include, whether an adult male can have sexual relationships with a minor if she gives her consent? In that case is a minor’s consent valid in the eyes of law? Can the law make concessions and release a person who is an offender in the eyes of the law because there happens to be a relationship between them after the offence?

The minor girl was a little over 15 years old when the incident took place. Through this order, it is unclear how the crime was uncovered and who filed the complaint. Whether, the incident complained of was with the victim’s consent.

Nevertheless, first it is to be considered whether such consent is valid in the first place. If you search for the word “consent” in the entire POCSO Act, you will find it in only two places, and neither are relevant to the offences. In fact, in section 41 of the Act it is mentioned that it will not be considered to be an offence under POCSO if a medical examination is done on the minor with the consent of the parents. This means that the law would punish any medical examination that fits in the definition of offences under the Act, if they are carried out without the consent of the parent or guardian. In this case, would it be permissible to take into consideration the consent of the minor in case of an actual sexual act? Certainly, the law does not provide for the same. It would be to err on the side of the law, if an interpretation like such is made to equate a minor’s consent in sexual activity with the consent of an adult in sexual activity.

In fact, under the Contracts Act as well, a minor’s consent is considered to be invalid. In that case would a minor’s consent in such a grave situation be considered good and valid in the eyes of the law? The answer to that must be in the negative.

If the legislature intended to take into account the minor’s consent, it would have expressly stated so in the Act. Also, if the relationship between the minor and the offender were to be taken into account to determine whether he/she is guilty of the offence, the same would have been provided.

In the absence of either of these provisions under the POCSO Act, to acquit a man who has maintained sexual relationships with a 15 year old girl (who is now a 19 year old) where the minor girl claims that the relationship was consensual amounts to setting a wrong and dangerous precedent; not only because it is in contravention to the law but also because there could be cases where minor girls are coerced to admit consent before the court of law.

Thus, this verdict of the Gujarat High Court effectively acquitting the convict without providing any legal reasoning and merely on the ground that the girl and the children borne of their relationship would be stranded, could be seen by some as seemingly bad in law.

Related:

Over 1.28 lakh cases of crime against children in 2020, yet there is eerie silence on issue 

A year on, Hathras victim’s family awaits a house, pension and employment

Two years after she was found dead, family of Mainpuri school girl awaits justice

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On October 29, 2020 the Madurai Bench of the Madras High Court granted bail to a man accused of raping and impregnating a 17-year-old girl under the Protection of Children from Sexual Offences (POCSO) Act on a condition that he marries he after she attains the majority age of 18.

The petitioner was represented by Mr. N.Ramesh Arumugam and the respondent State was represented by the Government Advocate Mr. KR. Bharathikannan.

Justice GK Ilanthiraiyan ordered the release of the petitioner on grounds that the accused shall register the marriage with the survivor “on or before 30.10.2021 and produce the Marriage Registration Certificate before the respondent police and if the petitioner fails to register the marriage the respondent police is directed to secure the petitioner and proceed in accordance with law.”

The bail condition further stated that the, “The parents of the petitioner and the victim shall file a joint affidavit for their consent to get marriage between the petitioner and the victim girl before the Special Court for Exclusive trial of cases under POCSO Act Cases, Thoothukudi.”

The petitioner was also directed to furnish a bond of Rs.10,000 with two sureties each for a like sum to the satisfaction of the Special Court for Exclusive trial of cases under POCSO Act Cases, Thoothukudi, to not tamper with evidence or witness and not abscond during trial.

While it may appear that the survivor’s consent is not being taken into consideration in this case, the accused claims that he was charged with rape only because he was in a sexual relationship with the survivor who is related to him. It is unfortunately not uncommon for parents to register rape charges when they disapprove of their daughter’s partner.

Background

The petitioner was charged for aggravated sexual assault and getting the survivor pregnant as a consequence of the assault under relevant sections of the POCSO Act. The prosecution alleged that the girl and the petitioner were in a sexual relationship due to which she became pregnant. Hence the complaint against him was filed.

The petitioner’s counsel submitted, “Both petitioner and the victim girl are closely related and they fell in love and also had a physical relationship. The petitioner is ready and willing to marry the victim girl whenever she attains majority. He further submitted that the petitioner is in jail for more than 50 days, hence he may be granted bail.”

The State’s counsel informed the court that, “the petitioner and the victim are close relatives and utilising the said circumstances the petitioner had sexual relationship with the victim girl aged about 17 years, due to which she became pregnant.”

The court took cognisance of the statement of the survivor wherein “she has clearly stated that they are closely related and they both fell in love and they have physical relationship, due to which she became pregnant.”

Taking note of all facts, circumstances and the willingness of the petitioner to marry the girl after she turns 18, the court proceeded to grant him bail on above mentioned conditions.

Related:

Kerala rapist demands parole to marry survivor; ploy to escape justice?

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

Death Penalty In POCSO Act Imperils Child Victims Of Sexual Offences

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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 fourth 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.)

Courtesy: India Spend
 

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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.
 
Related articles

1. When Rape and Violence become the Battleground for Communal Identities
2. And no justice for women: Muzaffarnagar gang-rape survivors are not the only ones losing hope
3. Concerned Citizens Tribunal – Gujarat 2002: An inquiry into the carnage in Gujarat
4. Fight to the finish: From the front lines of the legal battle for Sikh victims of the 1984 massacre
5. Communal Violence in Gujarat, India: Impact of Sexual Violence and Responsibilities of the Health Care System

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Mumbai: Cases registered over four years to 2016 under the Protection of Children from Sexual Offences (POCSO) Act, 2012, a law meant to protect children and hasten prosecution, will end only by 2022 based on the current rate of disposal, according to a new study.

Gujarat and Arunachal Pradesh, which reported the greatest backlog, will take 55 and 101 years, respectively, to finish with such cases, according to a study by Kailash Satyarthi Children’s Foundation (KSCF), an advocacy run by an Indian Nobel laureate.

The number of cases registered under POCSO increased 151% from 2009 to 2014, IndiaSpend reported on August 22, 2015.

More than 104,976 cases were registered between 2014-2016, according to National Crime Records Bureau (NCRB) data.

While only 10% trials were completed, the conviction rate was 30% for 2016.
 

Source: Kailash Satyarthi Children’s Foundation

Keeping the disposal rate of 2016 (10%) constant, some states such as Punjab and Nagaland would take about two years, while states such as Gujarat and Arunachal Pradesh would take more than 50 years to complete cases registered until 2016.

Source:Kailash Satyarthi Children’s Foundation , Crime in India 2016, National Crime Records Bureau
 

Until 2012, when POCSO was passed, sexual offences against children were covered under three sections of the Indian Penal Code (IPC): Rape under Section 376, outraging modesty of a woman under Section 354 and unnatural sexual acts under Section 377.

With the introduction of POCSO, other forms of harassment were also included. Most importantly, the Act was made gender-neutral and specifically designed to protect child rights and ensure the judicial system would be child-friendly.

Investigations by the police should be completed within two months and the trials within six months, according to amendments made to the POCSO Act and Code of Criminal Procedure (CrPC) by an ordinance in May 2018.

The Supreme Court later ordered high courts to ensure POCSO cases were heard by designated special courts, allowed no adjournments by POCSO judges and constituted special investigative task forces by state police chiefs, the Hindu reported on May 1, 2018.
Why cases are pending under POCSO law

“There has been a rise in the number of cases being registered because of increased awareness and mandatory reporting,” said Yashwant Jain, member, National Commission for Protection of Child Rights (NCPCR), which oversees POCSO.

NCPCR, under the ministry of women and child development, monitors investigations, trials and establishes child welfare committees, special courts and public prosecutors.  

“This has led to the number of cases being more against the number of courts present to deal with them,” said Jain.

“Apart from delays in police investigations, poor working strength of the judiciary adds to the pendency,” Subhadra Menon, executive director, research, KSCF, told IndiaSpend. “Sometimes, priority is given to cases registered under different sections of the IPC over cases registered under POCSO.”

The shortage of judges was documented by IndiaSpend in a three-part series (here, here, and here) and earlier this year.

Only 559 special courts are in place (84%) and only 438 (65%) special public prosecutors have been  appointed out of the 665 designated district-wise courts/prosecutors, NCPCR data show.

Constituting special courts and appointing public prosecutors does not mean that the staff increases or is even exclusive in handling POCSO cases. They are also burdened with work from regular courts, according to a 2017 study by the National Law School of India.

“There is also a delay in getting the forensic science laboratory (FSL) report, which further forces the police investigation to postpone their deadline,” Jain said.

Due to inadequate staff and infrastructure at forensic labs, 12,072 DNA samples and as many cases were pending in six central forensic labs till December 2017, the Hindustan Times reported on April 26, 2018.

Another major reason for the delay in investigations is the shortage of police personnel, said Surya Prakash B S, programme director, DAKSH, an advocacy.
 
As on January 1, 2016, India was short of 500,000 police personnel, according to data from the Bureau of Police Research and Development.

“The case life cycle is at the discretion of the parties and their lawyers,” Surya said. “It is often delayed due to the adjournments from the petitioner’s side.”

Although adjournments are not allowed under the POCSO Act, they are allowed. “Senior judges should ensure that the Act is followed, which it never is, and hence cases remain pending,” Surya said.

Delay in justice has an adverse effect on survivors. “They suffer a range of psychological problems resulting in self-blame and self-harm, lack of confidence, fear and attempt to suicide,” Menon said.

(Kulkarni, a post-graduate in social work, is an intern with IndiaSpend.)

This article was first published on indiaspend.com
 

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