WHILE the surge witnessed nation-wide in reporting of cases under the Protection of Children from Sexual Offences (POCSO) Act, 2012 indicates better awareness of the law, child rights activists, counsellors and lawyers in Mumbai are pointing out the consequent strain on the infrastructure of the special courts.
From absence of measures to ensure every court hearing is child-friendly to inability to provide support and care for all victims during the trial, various lacunae in the implementation of the law are increasingly visible.
One measure for better implementation was taken earlier this year, when more subordinate courts were designated as special POCSO courts by the Registrar General of the Bombay High Court. Registrar General Mangesh Patil said, “We have told the subordinate courts that they should take up POSCO cases instead of such cases being referred to a few courts, to ensure that such cases do not remain pending for long.”
“We have told the subordinate courts that they should take up POSCO cases instead of such cases being referred to a few courts, to ensure that such cases do not remain pending for long.”
“The designated courts were unable to take the load of POCSO cases. While hearing in every case should be done in one year, it was taking two to three years,” said Persis Sidhva from Majlis, a women’s rights group.
Other hurdles are proving harder to overcome. Under the Act, courts hearing POCSO cases are supposed to have certain infrastructure. But there are several instances where the available amenities were inadequate.
The law says expressly that courts must have a child-friendly atmosphere and the victim is not to be exposed to the accused at any time, including during the recording of evidence, though the accused can hear the child’s statement. For this, courts can use video-conferencing facilities, single-visibility mirrors or curtains while the victim is deposing.
Pointing out that curtains have been put up in some courts, co-founder and director of NGO Prerana, Priti Patkar, said, “There is a provision of appointing support persons to help the victims. This appointment has to be done by the Child Welfare Committee. This is happening is some instances in Mumbai and Thane, but not throughout the state. Experts, translators and special educators can also be appointed. The courts should make use of these people to help the victims.” Prerana works against trafficking of women and children.
Lawyers say the question of where the victim will enter the court from is also an issue — the accused and the victim cannot be allowed to enter from the same doorway. Sidhva adds that issues such as where should the victims wait outside a courtroom before their evidence is recorded remain unresolved in many courts.
Also, under Section 39 of the Act, the state is required to frame guidelines for using experts, NGOs, professionals or persons trained in psychology, social work, physical health, mental health and child development to assist the victim at the trial and pre-trial stage. The guidelines have been framed.
“Communication at every stage with the victim is crucial, and this is given least importance. Infrastructure and a child-friendly environment will be of no use if there is lack of sensitivity in communication. Providing the child with post-trauma support is also something that’s missing,” said Patkar of Prerana.
Emphasising the need for adequate infrastructure in POCSO courts, the Bombay High Court in a recent judgment observed, “…a particular set-up of the court premises is made mandatory. Under law, it is the obligation of the State Government to ensure that whenever proposals are submitted for creating Special Courts under the POCSO Act, the same are approved at the earliest.”
The law also says the child’s statement should be recorded at a place where he usually resides or at the place of his choice, and as far as practicable by a woman police officer not below the rank of sub-inspector. This provision, activists say, is often not followed.
In a recent POCSO case before the High Court, which pointed to police inaction with regard to arresting the accused, the HC questioned how a summons could have been issued to a four-and-a-half year-old boy who was allegedly sexually assaulted in his school premises, in contravention to the provisions of the Act.
Recounting her trauma, the mother of the victim in that case said, “I had been professionally counselling others in such matters, which is why I noticed the odd behaviour in my child. He was sitting in a corner. When I asked him what he was doing. he claimed he was doing ‘susu yoga’. I went into depression. It took a lot to go to a police station to register a complaint. That is when my ordeal began.”
The young mother claims she was made to wait endlessly before someone in the police station heard her complaint.
Subsequently, she was badgered to not file a complaint. The police, and the school refuted that such an incident could have taken place.
“After a lot of effort, an FIR was registered. My child’s statement was recorded by a magistrate who was very sensitive, leading to him divulging more details and identifying the accused, which was not mentioned in the FIR. After three months, when I asked the police about the progress in the investigation, I got no response. After almost seven months of this, I approached the HC,” she said.
The matter is pending before the court.
Similarly, in the Agnelo Valdaris custodial death case, three policemen were booked under Section 6 and 12 of the POCSO Act and Section 23 of the Juvenile Justice Act for allegedly picking up four people including the minor Valdaris. The men were allegedly kept in a lock-up, assaulted and then made to perform oral sex on one another.
Joint Commissioner of Police (law and order) Deven Bharti said the police is doing everything it can to improve sensitivity. “There is a juvenile police unit in place. In such cases, a woman police officer usually takes down the complaint. If no officer is present, a woman constable is asked to do the needful. The reporting of such cases has of course increased due to awareness,” he said.
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