Madhya Pradesh’s Damoh district authorities jumped into action on September 5, 2021 after learning that six minor girls were paraded naked in a village as part of a ritual to appease the ‘Rain God’.

As many as eight people including six women were charged under the Protection of Children from Sexual Offences (POCSO) Act, the Juvenile Justice Act and other charges. Superintendent of Police (SP) D.R. Tenivaar told Sabrang India that while the girls were not forced to participate in the ritual, the administration has taken cognisance of the offence.

However, despite this attention to social evil, Damoh officials are yet to talk about the underlying problem of the drought-like situation in their district.

Deficient rainfall in Bundelkhand region

News reports as early as June have voiced concerns about the possibility of scanty rainfall during the monsoon season. Many districts like Jabalpur, Panna, Balaghat, Hoshangabad, etc. Even the Indian Meteorological Department’s (IMD) district-wise rainfall distribution map shows 16 districts (in red) that suffered from deficient rainfall since June 1.

Image Source: IMD

Worse still are the weekly data points that show the Sidhi district receiving only 17.9 mm actual rainfall as opposed to the 70.9 mm normal rainfall between September 2 and September 8.

Image Source: IMD

A September 14 report said that rainfall in Damoh remains in the ‘deficient’ category with 3.6 mm actual rainfall when normal rainfall was estimated at 6.3 mm. Between June and September, the area reported 546.7 mm actual rainfall even though the normal rainfall for the monsoon season was estimated to be 974.3 mm. The report places the district at -44 percent rainfall departure – the worst in the east Madhya Pradesh sub-division.

However, according to Damoh District Magistrate S. Krishna Chaitanya there is no cause for worry. “Damoh received 124 cm rain till yesterday. Right now, there is no drought-like situation. The standing crops are also okay,” he said.

When asked about the Baniya village incident, Chaitanya said that the administration has called for a block-wise campaign in the area to raise awareness among people regarding child rights and crimes but he could not state a reason for the organisation of the ritual itself.

“There is a tank near the village which has enough water for irrigation. I do not think there is a problem with drinking water,” he said.

However, his claims stand at odds with news reports voicing grievances of farmers in the region. On September 4, a day before the Baniya-incident, the Times of India reported how Bundelkhand farmers ran tractors over their damaged crops to flatten the land. The report talked about barren patches of land and perplexed farmers, who were unsure about the next step of survival.

Similarly, The Print on July 20, reported how low rainfall had contributed to the fall in soybean – a major contributor in India’s edible oil – acreage. At the time, 35 of the 52 districts reported rain-deficiency. Some districts were up to 70 percent short on rainfall.

Role of state policies to address droughts

The India Water Portal in 2020 wrote about how the Bundelkhand region has a long history of droughts and famines since the Indian famine of 1896–1897. It experienced a major drought every 16 years during the 18th and 19th centuries. By 2016, as many as 46 out of 52 districts in the state were drought-affected.

For a state widely dependent on agriculture and livestock livelihoods, such scarcity of water spelled doom. This is one of the reasons why drought is considered a state policy in Madhya Pradesh.

Accordingly, the state government initiated two flagship programmes, ‘Bundelkhand Special Package for Drought Mitigation’ and ‘Drought Prone Areas Programme’ to address the issue. However, the two policies seldom connect with each other. As a result, there is still no framework to understand and address underlying vulnerabilities of drought or any other extreme climatic event.

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The Bombay High Court has issued specific directions to lower courts, legal services authorities and the Police on legal representation of the child under Protection of Children from Sexual Offences (POCSO) Act. The bench of Chief Justice Dipankar Dutta and Justice GS Kulkarni also stressed upon the entitlement of the child and her family to be made aware of the developments in the case including all the hearings, bail and verdict of the case. The court has issued specific directions to these authorities to ensure strict compliance of the provisions of the Act and its Rules.

The plea

The petitioner, Arjun Malge, a social worker came before the court raising issues in regard to the rights of the children to participate in the trial of offences under the POCSO Act. A concern was raised with regards to implementation and compliance of section 40 of the Act and Rule 4 of the POCSO Rules. Section 40 states that subject to section 301 of CrPC, the family or guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under the Act and if they are unable to afford one, Legal Services Authority shall provide a lawyer to them.

Further the POCSO Rules provide for an obligation interalia on the Special Juvenile Police Unit (SJPU), or the local police to keep the child and child’s parents or guardian to be informed about the developments, including the arrest of the accused, applications filed and other Court proceedings, and the nature of the information to be provided. The petitioner stated that application of these provisions, would ensure a fair representation to the victims of child sexual assault, their families and the public in general. In supporting the contention that these provisions are overlooked and/or not implemented, the petitioner has placed on record orders which are passed by the different Sessions Court, which clearly show that neither the victims or the complainants at any point of time were informed of the proceedings nor any notice was served in compliance of Section 40 read with Rule 4 of the POCSO Act and Rules.

Maharashtra State Commission for Protection of Child Rights, a respondent in the case, concurred with the petitioner that Section 40 of the POCSO Act depicts the statutory mandate that the child is entitled to be legally represented, at all stages of the legal proceedings.

The court’s observations and directions

The court observed that section 40 of the Act confers a right upon a child to take assistance of a legal practitioner. As also, the POCSO Rules entitle the child and the family/guardian to be made aware of filing of applications, the hearings of such applications, status of investigation, availability of victim’s compensation benefits, arrest of a suspected offender, filing of charges, schedule of proceedings, bail/detention of offender, verdict of the trial and the sentence imposed.

The Court issued the following directions to ensure that these provisions are thoroughly complied with and the legislative intent is fulfilled:

• Apart from the duty of SJPU to intimate the child’s family under Rule 4, where an application is made before the Court on behalf of the prosecution, it shall be the duty of the office of the public prosecutor to issue notice of hearing of such application to the child’s family/legal counsel along with all relevant documents. Same procedure to be followed when application is made by the accused.

• When an application is made on behalf of the prosecution, it shall be the duty of the Police Officer to confirm to the relevant Court that service of such application has been completed

• In the event, it has not been possible to serve the child’s family, guardian or legal counsel, it shall be the duty of the SJPU to inform the reasons in writing to the relevant court.

• The court shall ascertain service of notice and if the same has not been serviced, Court may make such reasoned order as it deems fit to secure the ends of justice, taking into account any emergent circumstances that warrant dealing with the application

• In the event despite issuance of notice, the child’s family, guardian or legal counsel, does not attend the hearing, the Court may proceed further without the presence of such notice, or issue a fresh notice, as the Court may deem fit and proper

• When the proceedings under the Act would also relate to an offence against Sections 376(3), 376-AB, 376-DA or 376-DB of the Indian Penal Code, the notice to the victim shall be issued under Section 439(1-A) read with Rule 4(13) and 4(15).

The court directed that the copy of the order be brought to the notice of all the Sessions Judges and Special Court Judges in Maharashtra as also to Director General of Police, the Director of Prosecution and Superintendent of Police of all districts as well as Member Secretary, Maharashtra State Legal Services Authority who shall then forward it to Secretary of each District Legal Services Authority.

The complete order may be read here:

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Kolkata: Children participate in an awareness rally against child abuse.

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.)

Courtesy: https://www.indiaspend.com/
 

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