POCSO’s child friendly policies good in theory, but practically we need to do better

It’s the 9th anniversary of POCSO. It is nearly impossible to keep the victim protected from the accused. The entry and exit to court complexes are usually common. The area where litigants and witnesses wait for their turn is also shared.

With 41% of the population under 18, India is often called a “young nation”. Our societal structure revolves around children and families. Yet we do not have a mechanism to keep children safe from abuse, particularly sexual abuse. According to a country-wide study in 2007, 50% of children in India have been sexually abused. This report uncovered a “dirty secret” that we refused to acknowledge. It also noted how the number of children getting abused and the number of cases being reported did not match.

To “encourage” more reporting, the government, in its infinite wisdom, decided to make it mandatory to report. They put this onus on any adult who knows that a child has been abused or may be abused. The government believed that if perpetrators were harshly punished, it would deter people from abusing children. Punishment as a deterrent to any crime is a common misconception. Criminologists in India and globally have presented data-driven research to prove that this is incorrect. However, mandatory reporting and severe punishment to “protect” children is a better sounding political statement than acknowledging the inherent patriarchy, sexism and casteism in any society.

This provision has been under scrutiny ever since the implementation of the Protection of Children from Sexual Offences Act of 2012 (POCSO). Several experts working on gender-based violence and on child rights have repeatedly expressed their concerns about this provision. A lot has been said and written about the same. However, one concern has often been ignored in the mainstream discourse: If 50% of children report their abuse, do we have adequate infrastructure to provide end-to-end support for children and their guardians?

Reporting

Reporting involves recounting traumatic incident(s) and assisting police to gather evidence. While there are some safeguards in law to minimise distress, they are often not implementable because of a lack of adequate facilities. For example, the law states that the child should be protected from the accused to prevent any form of intimidation — direct or indirect. While that sounds great in theory, most stakeholders are not provided with adequate infrastructure to facilitate the same. For instance, when the offence is reported, the police have a restricted time-limit within which they must make sure both the accused and victim get medically examined. In the absence of more than one vehicle, they have to take them to the hospital in the same vehicle.

Courts and Court rooms

Interaction with the criminal justice system is hard for anyone. District courts are usually chaotic. The whole process is often inaccessible. This is why the law designed child-friendly courts’ to ensure that children do not get re-traumatised. However, most districts in India do not have this set-up yet and the Supreme Court has given directive to states in an on-going suo-motu writ petition to set it up in all districts. Even those which have them, have created this room inside the regular court premise which defies the purpose of making it “child-friendly”.

Additionally, just like at the stage of reporting, it is nearly impossible to keep the victim protected from the accused and accused’s family members except (optimistically) during testimony. The entry and exit to court complexes are usually common. The area where litigants and witnesses wait for their turn is also shared. Often in the testimonies I have been part of, the accused is seated behind a curtain or a screen which divides the room. Children who have come to testify enquire if the accused is present behind this curtain. Therefore, the purpose of the curtain is often misplaced. In other cases, these curtains and screens are not available — thus exposing the child to the accused.

In some district courts, they have set up video conferencing facilities where the child can testify from an adjacent room. However, often due to technical reasons, these facilities do not work, and the child has to be brought back to the room where the judges and lawyers are sitting. Furthermore, most “special courts” under POCSO also adjudicate other matters. Even with the minimal reporting, the court has been unable to comply with the suggested time limit. This is especially difficult during COVID-19, when many testimonies are getting postponed because not all victims nor courts have access to facilities for remote hearings.

Trial

Victims play a very limited role when trial starts. The law does allow the child and the guardian to hire a lawyer to represent their interests. However, the nature and scope of support is very limited. Without adequate support and lack of understanding of the impact of trauma on children, providing testimony is very distressing. Delhi High Court released guidelines on how to record testimony of vulnerable witnesses and the Supreme Court suggested all courts follow this guideline. The guidelines, among other things, provide a list of ways in which a lawyer can support the victim. But the lawyers assigned by legal aid authority do not get to meet the child until the morning of the testimony because they get assigned a few days before the testimony. They get very little time to build rapport before the child feels comfortable to share about the incident of trauma. Additionally, we have to take a step back and question:

  • Are lawyers and judges trained to work with victims of violence?
  • Do we have enough professionals to help us work with disabled children?
  • Are we providing judges with adequate training to work with children, and to understand how trauma manifests itself short-term and long-term? 

In the absence of necessary infrastructure and support systems, the presumption that mandatory reporting and harsh sentencing will deter crime is full of flaws. A conversation with grassroots organisations and child rights advocates working on this would have made it amply clear that this is not enough nor is this the correct step.

Mandatory reporting is not helpful for a myriad of reasons. More importantly, the system itself is not ready for mandatory reporting. Above all, it is not helpful because we have not facilitated infrastructure that will provide support to children if and when they report. Additionally, the human cost of mandatory reporting has not been anticipated, causing further distress and trauma to children who are engaging with this system.

It has been nine years. It is about time we regroup and re-evaluate the policies. We need to consult with organisations from all over the country (especially those in small towns and villages, and outside New Delhi) to understand how we can support children and safeguard their rights. We need to consult other professionals who can give us more insight into trauma informed care. We need to consult victims who have testified, and adult survivors who are willing to share their experience. In creating policies which are “expert driven” and without talking to key stakeholders, we are inadvertently causing more harm.

The question really remains: Are we committed to safeguarding children and their rights? Are we centering their best interests as laid down in the United Nations Convention on the Rights of the Child (UNCRC)? Or are we putting in place measures that merely provide an illusion of justice?

This article was first published with The News Minute.

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