By Swagata Raha
The last fortnight has been eventful for child protection. While adolescents between 16 and 18 years accused of heinous offences stand deprived of their rights in the juvenile justice system by the Juvenile Justice (Care and Protection of Children) Bill, 2015, a judge of the Supreme Court urged Parliament to bring in more ‘rigorous punishment for child rape’. Protection and justice have never been more misunderstood. We cannot seem to look beyond enhancement of punishment even though its deterrent effect is negligible. The demand for new laws and barbaric punishments take the attention away from the systemic flaws of the criminal justice system and the traumatic experience of victims.
Before mooting any change in law, the nature of child sexual abuse and the profile of victims and perpetrators must be studied. An analysis of 667 judgments of special courts in Delhi by the Centre for Child and the Law, NLSIU Bangalore revealed that the accused was known to the victim in 80% cases and was a stranger in 17%. Neighbours constituted the largest group (29%) followed by those related to the child by blood or through the mother (20%). Amongst the total number of victims, the 12 to 15 age group formed the largest group consisting of 30% of the cases (197 cases), while the 16 to 18 age group formed the second largest group consisting of 28% of the cases (186 cases). Children below 5 years constituted only 7% of the total victims. The highest percentage of cases in which the victim turned hostile were those in which she was married to the accused (99%), in a romantic relationship with the accused (96.07%), step-daughter (76.47%), daughter of the accused (76.34%) and related to the accused (73.58%). Considering the above, dehumanizing perpetrators of child sexual abuse and demanding that penalties be enhanced is more likely to deter the victim from participating in the criminal process.
The remark of the Supreme Court Judge must also be examined in light of the existing legal framework. The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted to exclusively cover the ambit of child sexual abuse. The Statement of Objects and Reasons to the POCSO Act recognized that “offences against children need to be defined and countered through commensurate penalties as an effective deterrence.” The term ‘child’ is defined to mean a person below the age of 18 years under Section 2(1)(d), POCSO Act). Penetrative sexual assault of a child below 12 years constitutes aggravated penetrative sexual assault under Section 5(m) of the POCSO Act. This offence is punishable with fine and rigorous imprisonment for a minimum term of 10 years that can extend to life imprisonment. The Criminal Law (Amendment)) Act, 2013 introduced several substantive sexual offences in the Indian Penal Code (IPC). Rape of a minor below the age of 16 years constitutes aggravated rape under Section 376(2)(i) of the IPC and is punishable with fine and rigorous imprisonment for a minimum term of 10 years, but which may extend to life imprisonment. Life imprisonment in this context implies “imprisonment for the remainder of that person’s natural life.”
The penalties prescribed under the POCSO Act and the IPC are adequate and leave enough room for judges to impose a term of imprisonment higher than the minimum sentence if the chid is very young. In Alister Anthony Pareira v. State of Maharashtra, AIR 2012 SC 3802, the Supreme Court held: “One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done.” To rob judges of this discretion by making penalties more rigorous would undermine the principle of proportionality that is central to criminal justice.
Over-criminalization will also result in giving primacy to vengeance over rehabilitation of the offender and healing of the victim. Research on victims of criminal justice conducted in several jurisdictions outside India have revealed that victims of crimes want five basic things: information, participation, emotional restoration and apology, material reparation, and fairness and respect. These elements are barely respected during the criminal trial. Studies have also shown that the restorative justice process addresses these five needs much better than the criminal justice system and also helps in healing and closure.
The higher judiciary needs to vigorously introspect about the functioning of criminal courts. It should also examine the extent to which the funds made available under the National Mission for Justice Delivery and Legal Reforms for improvement of courtroom infrastructure have been utilized to make court complexes child-friendly. State departments of public prosecution and police need to collectively scrutinize the lapses in investigation that led to acquittals. There is a need for greater investment in scientific and evidence-based research on treatment models for sex offenders. State Governments need to put in place a support structure and service providers who can assist a child victim and her/his family cope with the trauma of sexual abuse and navigate the courtroom. The emphasis needs to shift from the brutality of the offence to the needs of the victims.
The author is consulting senior legal researcher, Centre for Child and the Law, National Law School Bangalore