The chain of events is by now familiar. The young girl — 16, by some accounts, or perhaps 12, according to school records in Bihar — was gang raped one day, gang raped again the next day because she had dared to go to the police, forced to change her residence because of the harassment she faced and finally set ablaze. The ordeal stretched over two months, beginning October 25 when the girl from Madhyamgram was sexually brutalised the first time, and ending with her death on December 31.
All that the police did was register a case of gang rape and abduction on the basis of the girl’s statement.
Yet much of this could have been prevented, lawyers say, if only the police had made use of the Protection of Children from Sexual Offences (Pocso) Act, 2012. That didn’t happen apparently because the police were unaware of this law or reluctant to deal with its technicalities.
The Pocso Act — in effect since November 14, 2012, and designed to protect children against sexual and penetrative sexual assault, sexual harassment and pornography — is a well-framed, comprehensive law. It also seeks to safeguard the interests of young victims at every stage of the judicial process by having child-friendly mechanisms for reporting, recording evidence, investigation and speedy trial of offences through special courts.
Yet even after more than a year of its passage, few children have benefited from it. That’s because of the lack of awareness and will on the part of the police and the administration to charge criminals under it. “The procedures followed under the Pocso Act are technical and elaborate, and are still not crystal clear to the police,” points out Debashish Banerjee, advocate, Calcutta High Court, and co-ordinator of the Human Rights Law Network (HRLN), Bengal chapter.
No centralised data on the number of cases registered under the Pocso Act exist, but rights activists and state women and child development officials confirm that only in a few instances have the police invoked this legislation to charge offenders.
There’s a strong need to familiarise the force with the tenets of the act, stresses Minati Adhikary, chairperson, Child Welfare Committee (CWC), Calcutta. “Whenever such cases are brought to our notice, we tell the police to frame the charges under the Pocso Act. In the past three months, we have registered 10 to 15 cases under this act,” she says. The Calcutta CWC organises regular workshops on the subject for the police.
According to HRLN workers in Calcutta, who held a training camp for officials of the South 24 Parganas police station in December, so far only a single case has been registered under the Pocso Act in the district, at the Kulpi police station. And data available with Childline, an NGO that helps children in need, reveal that only 10 cases have been registered under this act by Calcutta police in the past six months. That’s not because sexual crimes against children are not climbing — far from it.
The law casts the police in the role of child protectors. An investigating officer is required to record the victim’s statement in plain clothes, at the victim’s residence or at a place where he or she is comfortable. The act also makes immediate medical examination mandatory if penetrative sexual assault has occurred. Also, copies of the report must be given to the victim’s guardian along with a copy of the FIR and subsequent information about the trial.
There is more. Section 19 of the act states that if the police feel the child is in need of protection, they should make immediate arrangements for this, including taking him or her to the nearest shelter or state hospital, within 24 hours of filing the FIR.
“In the case of the Madhyamgram rape, for instance, the police should have sent the girl to a shelter in consultation with the CWC within 24 hours of the complaint being filed,” says Banerjee.
Still, comprehensive though it may seem, the Pocso Act suffers from a few drawbacks. Section 22, for example, states that even if a false complaint is registered by a child, he or she cannot be punished. This makes this otherwise welcome piece of legislation open to misuse.
For instance, a teenager in love with her tutor might allege sexual harassment if spurned, argues Kallol Basu, advocate, Calcutta High Court. “There are several instances of parents lodging false complaints in order to settle personal scores. In such cases, this act would be a potent assault weapon and would land the accused person in hot water,” he explains.
Besides, many feel that the law should have had a wider coverage to include prevention of crime in the first place. “You cannot book someone under the Pocso Act unless sexual assault has taken place. We cannot invoke it against a trafficker when we rescue minor girls from railway stations or trains, though it is obvious that they are being taken away for sexual exploitation,” says Sarbari Bhattacharya, officer-in-charge, anti-human trafficking, CID, West Bengal.
Then, for speedy trials, separate special courts are needed where the matter would be tried by a judge vested with the powers of a sessions court magistrate. Unfortunately, no such courts exist in West Bengal yet. Neither are there any designated sessions courts that may function as child-friendly courts. “The police get completely confused as they don’t know which court to notify after the charges are framed,” says advocate Banerjee.
The West Bengal government had given an undertaking to the high court in response to an order passed in February 2013 that it would constitute 19 special children’s courts within a month. The proposal was sent to the chief justice of the Calcutta High Court for consideration, but the matter is still in limbo.
Moreover, under Section 17 of the Commission for the Protection of Child Rights (CPCR) Act, 2005, all states and Union territories are required to have a child rights commission. This state commission, or the SCPCR, is supposed to monitor the implementation of the Pocso Act. “However, most state commissions are either not fully equipped or not functional. Some that appear to have everything in place have as members political appointees who have no knowledge of child rights laws or the basic training to deal with such cases,” says Banerjee.
West Bengal did set up a commission comprising a chairperson and seven members last year, but it exists “only in name”, child rights activists claim. “They don’t even have a proper office,” says an official of the child development department.
“If there is a vigilant SCPCR to monitor the implementation of laws like the Pocso Act, incidence of rape and molestation would reduce drastically,” says a prominent child rights activist, who doesn’t want to be named. Amen to that, we say.