Recently an eight-year-old girl was reportedly raped by the father of her 13-year-old friend in broad day light in Delhi. This act was apparently witnessed by the victim’s friend from a distance. Both were so deeply traumatised that they are undergoing counselling. Such cases are not uncommon in India. The fate of such cases can be predicted: NCRB data shows that almost three-fourths of rape cases go unpunished every year.
The witness, in all probability, may not speak against her father. Quite often, doctors, who conduct the primary examination of the victim, depose in the court that the injury caused to the minor could be by any other object. To what extent an eight-year-old would be able to explain the act of sexual assault in court is often the only deciding factor to prove the rape charges.
An analysis of rape cases of minors reveals that nothing has changed even after the enactment of the Protection Of Children from Sexual Offences (POSCO) Act in 2012. Section 29 of this law says that “the special court shall presume that the person prosecuted under sections of penetrative sexual assault has committed or attempted to commit the offence unless the contrary is proved”. However, experience reveals that the prosecution is still asked to prove the case “beyond reasonable doubt”.
The law permits the medical examination of minor victims only with guardians’ consent. If such consent is not granted, more emphasis needs to be laid on oral evidence. However, it has been found that comparatively less importance is given to the uncorroborated oral evidence in cases where the consent for medical examination is withheld. The scrutiny of evidence in such cases is generally the same as in the cases where the victim is fully aware of the criminal act. Such standards need to be considered afresh.
Criminal justice emerges out of the friction between two adversaries — the prosecution and defence — with the judicial magistrate acting like an impartial referee. However, in cases involving minors, judges may need to be slightly pro-active, as even the SC has criticised the passive role played by lower court judges.
The Justice Malimath Committee, constituted to suggest measures to reform the Indian criminal justice system, stated in its report that the adversarial system of dispensing justice had not worked satisfactorily in India and some beneficial features of the inquisitorial system should be incorporated. A few high courts and state governments had also agreed with the committee’s suggestion. In an inquisitorial system, (as applicable in China, Russia, Japan, Scotland etc) judicial magistrates investigate criminal offences and search for the truth. In Germany, a breach of the judges’ duty to actively discover truth would amount to a procedural error which may provide grounds for an appeal. Italy uses a blend of two systems.
Some elements of the inquisitorial system are already incorporated in the Indian law. Section 176 of the CrPC says that custodial death or disappearance and custodial rape shall be inquired into by the judicial magistrate in addition to the inquiry or investigation held by the police. Investigative powers can be given to the judicial magistrates in cases of rape of children under 12 years of age. The investigative judicial (woman) magistrate could be assisted by a female medical doctor and an expert in child psychology. The report of such magistrate could be treated as a final piece of evidence and the accused may be given an opportunity to state and defend his version.
Having a separate law like the POCSO Act does not seem to be sufficient to dispense justice to a spectrum of victims who are not even capable of comprehending the trauma of sexual violence. Radical changes are required to deal with such offences. It might be the time to introduce the inquisitorial system in cases of sexual exploitation of children who cannot speak for themselves.