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The gang-rape of Gudiya (real name of victim not disclosed) at the tender age of five, by a man she called ‘uncle’, shook our collective conscience while we were still reeling under the trauma of what had happened to Nirbhaya.
Yet, eight years into the enactment of the Protection of Children from Sexual Offences Act, 2012 [POCSO], and seven years after Gudiya’s barbaric rape in April 2013, there are basic aspects of the legislation that remain alarmingly unaddressed.
It is no secret that a number of POCSO cases end in acquittals. While a more uninformed opinion is that the cases themselves might not have been genuine, the grim reality is that there is a gross failure to support and rehabilitate the victim and her family. As a result of this, either the victims turn hostile or the family turns hostile, or they simple lose hope and stop cooperating.
Thus, timely payment of compensation and due rehabilitation of the victim are key to ensure a proper trial that actually brings out the truth. Let’s examine what the statute says about these two aspects.
Section 33(8) of POCSO provides that in appropriate cases, in addition to punishment, the Special Court may direct payment of compensation to the child for any physical/mental trauma caused to the child or for immediate rehabilitation. Pursuant to the parent Act, the POCSO Rules of 2012 dedicated Rule 7 to the procedure and parameters of providing such compensation. Rule 7(3) enlisted the various parameters/factors to be considered by the Special Court in deciding such compensation, such as-gravity of the offence, expenditure incurred/likely to be incurred on medical treatment, loss of educational opportunity, financial conditions, etc. Rule 7(4) and (5) state that after the amount is decided/granted by the Special Court, it is to be disbursed from the Victims Compensation Fund or such other scheme by the legal services authority within 30 days of receipt of such order.
While the law clearly provides for compensation, in reality, POCSO victims are facing colossal problems in this respect. It is seen that grant of compensation by Special Courts under POCSO iss both sporadic and erratic. There is utter confusion as to whether Delhi Legal Services Committee or the Special Court is to decide the amount, though a thorough reading of the Act made it quite apparent that the latter was the disbursing authority.
There is also confusion as to who is to apply for compensation on behalf of the victim, with many victims under the impression that the investigating officer would apply for compensation on their behalf. To top it off, even in cases where the compensation was granted by the Special Court, the amounts were rather inconsistent and arbitrary, some being as meagre as Rs. 10,000. This, despite the fact that when many of these cases reached the Delhi High Court in appeal, more often than not, the compensation amounts were increased manifold.
Contrast this paltry amount to the compensation granted in cases of rape as per the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, 2018 issued by National Legal Services Authority, where a minimum amount of Rs. 4 lakh and a maximum amount of Rs. 7 lakh is provided for.
In a sample study conducted by the Delhi Commission for Protection of Child Rights (a statutory body constituted under Section 17 of The Commissions for Protection of Child Rights Act, 2005) titled Mapping of Needs and Priorities: A Study of Child Rape Victims in Delhi, startling revelations were made. The study highlighted the challenges child rape victims and their families face, and aspects that have a definite bearing on their rehabilitation and social reintegration. An analysis of the study revealed the following:
42% of the child victims dropped out of school.
50% of the children suffered from different types of physical illnesses that were linked to rape. About 81% of parents stated that they were unable to fulfil the health needs of their children who were victims of child rape.
With regard to compensation, the study revealed that only 1 child had got compensation of more than Rs. 50,000, whereas 99% of the children had not got compensation as per the prevalent scheme.
Only 15% of the victims had received any compensation and 85% had not received compensation.
38% of the victims had not received any legal aid.
This study was instrumental for two reasons - firstly, it was conducted by a statutory body ordained by law with the task of monitoring the implementation of the Act; and secondly, the study threw light on the dismal state of implementation of the Act, seven years into its passing. The message was loud and clear - for those who wanted to hear it - we are failing to protect and provide succour to our children.
These issues were raised and argued at length in a PIL filed in the Delhi High Court back in 2016. The PIL highlighted that as per the National Crime Records Bureau Report (2014), the pendency rate of trials under POCSO in Delhi was a staggering 95%. Moreover, an abysmally low 1% of the trials were leading to convictions. The primary prayer was that unless exclusive as opposed to assigned courts are made under POCSO, trials cannot get completed within the stipulated period of one year under Section 35 of the Act and other special provisions of the Act will not get the specialized attention they deserve.
If this data sounds astonishing, consider this. When the NCRB data of 2017 was released, its analysis revealed that at the current rate of completion of trials, it would take approximately 24 years to complete the trial of existing POCSO cases in India, even if no new cases are sent to trial during that time. In other words, we were essentially telling our children to fend for themselves and not expect justice, at least not unless they are willing to relentlessly fight their case of child abuse till much after they have their own children!
While the matter was still being heard in the High Court in the captioned PIL, the Supreme Court passed a significant direction on the aspect of compensation under POCSO in Nipun Saxena & Anr v. Union of India & Ors. It was directed that the Special Court, upon receipt of information as to commission of any offence under the Act by registration of FIR, shall on his own or on the application of the victim make an enquiry as to the immediate needs of the child for relief or rehabilitation and pass appropriate order for interim compensation.
It was further held that if the court declines to grant interim or final compensation it shall record its reasons for not doing so. Finally, the Apex Court made it abundantly clear that the Special Court must mandatorily take up and consider each POCSO case for the aspect of compensation. This does not mean that compensation must be granted in every case, but the adjudication on compensation must be there in every case.
Nipun Saxena’s case was preceded by another pertinent judgment passed under POCSO by the Supreme Court in Alakh Alok Srivastava v. UOI, wherein the Apex Court directed for each High Court to constitute a three-judge committee to regulate and monitor the progress of trials under POCSO. In addition, each state was directed to constitute a Special Task Force to ensure that investigation is properly conducted under POCSO. In Delhi, a Special Task Force has been constituted vide order dated May 17, 2018, headed by Special CP, Crime. Yet, on the ground, the position has not substantially improved.
It was the Unnao Rape case and the Supreme Court’s suo motu cognizance of it that truly brought many of these issues to the fore. The Supreme Court noted that timelines of the Act are not being followed at all. Besides granting interim compensation of Rs. 25 lakh to the victim, the Supreme Court directed that in each district in the country (if there are more than 100 POCSO cases) an exclusive Special Court will be set up, which will try no offence expect those under POCSO Act. Though the Court had granted 60 days for the same, the process of setting up and functioning of these courts all over the country is still underway.
On March 9, 2020, the POCSO Rules, 2020 came into effect. These Rules are notable for certain pertinent additions such as:
Rule 3 mandates both the Central and state governments to carry out appropriate awareness generation and capacity building under the Act, dissemination of information at airports, railways stations and other public places, etc. Moreover, it provides for the formulation of a ‘Child Protection Policy’. This provision will be instrumental in terms of ‘prevention’, as well as ‘cure’.
Rule 8 provides for ‘Special Relief’ or immediate financial assistance, in the case of any contingency or essential needs, to be sanctioned and provided by the concerned Child Welfare Committee.
Rule 4 provides that the support person appointed for the benefit of the child must submit monthly reports with respect to the child victim to the Child Welfare Committee.
Form A and Rule 4 (14) ensure that each victim/family is made aware of his/her rights under the Act, at the nascent stage itself, when they first come in contact with the Police.
Form B and Rule (14) is a “Preliminary Assessment Form” to assess the immediate financial needs of the child victim and has been incorporated to ensure that he/she gets the financial help where needed, without delay.
The advent of the new POCSO Rules, 2020 and the directions of the Supreme Court in 2018-2019 have given a sliver of hope to POCSO victims. As is with all laws, the implementation on the ground is a whole new ball game from the promulgation of the law itself. It remains to be seen whether these new developments provide the care and rehabilitation that POCSO victims need and deserve. Be that as it may, a sliver of hope is better than a sliver of doubt!
Our guiding force in ensuring effective implementation of the Act must be this - we fail every child when he/she is abused/raped/harassed. The least we can do is make concerted efforts to ensure that we do not fail them twice by not providing them timely compensation and rehabilitation.
The author is an Advocate practicing before the Delhi High Court.