Is law failing our children?
Statistics suggest that while there has been an increase in the cases of sexual assault on children, the conviction rate has remained low and the number of people who were out on bail while being tried under Pocso increased.
On June 10, a district court in Pathankot, Punjab, sentenced six people for the abduction, gang rape and murder of an eight-year-old girl in Jammu’s Kathua region. While three of the accused have been charged for the actual crime, three policemen (one sub-inspector, one head constable, and one special police officer) have been convicted for destruction of evidence. The incident took place in January 2018. However, it was only after the Supreme Court ordered that the trial be shifted out of Jammu and Kashmir in May 2018, that regular hearings could begin in the case. The apex court’s order came in the wake of immense local hostility, which included local lawyers preventing law officers from reaching the court; and ministers in the Jammu and Kashmir government, who were later removed, leading demonstrations in favour of the accused. The victim belonged to a Muslim nomadic tribe, and the accused were all Hindus. This communal angle was playing an important role as the events were unfolding.
Even as the court verdict has generated a sense of satisfaction over the law finally catching up with perpetrators of the heinous crime, cases such as Kathua continue to happen. Last week, the mutilated body of a three-year-old girl was found in a garbage dump in Aligarh. Initially, rape was suspected but police said medical reports have ruled out sexual assault. One of the accused, who has been arrested, had previously been accused of raping his daughter five years ago. He was released on bail later.
In May 2018, the Bihar government registered a case after a social audit by the Tata Institute of Social Sciences (TISS) reported widespread sexual abuse of 34 girls who were staying in a state-funded non-governmental organisation (NGO)-run shelter home in Muzaffarpur. The main accused, Brajesh Thakur, was an influential man in the state, who ran many NGOs, newspapers, and was even part of the committee deciding on government accreditation for journalists in the state. The case has been handed over to the Central Bureau of Investigation (CBI), which told the court earlier this year that the accused and his accomplices could have murdered 11 girls and buried them.
These anecdotal accounts help us put into perspective what are otherwise mere statistics of sexual violence against children in India. To be sure, even these statistics are not available anymore. The National Crime Records Bureau (NCRB), which works under the Ministry of Home Affairs, has not released its annual compendium of crime statistics, Crime in India, after the 2016 version was released in October 2017. The document earlier used to be published with a lag of six months. The 2012, 2013, 2014 and 2015 documents were published in either June or July of the subsequent year. Neither the 2017, nor the 2018 volumes have been published till date.
The existing statistics do not reveal a comforting picture. The average number of rape cases, where victims were aged 18 years or less, increased by more than three times between the trienniums (three-year periods) ending 2003 and 2016. This increase is almost twice the increase in number of rape cases where victims were more than 18 years old during the same period (See Chart 1).
NCRB also gives a more detailed break-up of rape cases by the age of victims. However, a long-term comparison is not possible because of a change in age cohorts in 2014. While reports until 2013
use a age-group classification of up to 10 years, 10-14 years and 14-18 years, NCRB shifted to a classification of up to six years, 6-12 years, 12-16 years and 16-18 years since 2014. A total of 547, 451 and 520 girls aged up to six years were victims of rape in 2014, 2015 and 2016, according to NCRB data.
How does the criminal justice system perform in dealing with such cases? NCRB gives statistics on convictions and acquittals under major crime heads. In 2016, the latest year for which data is available, conviction rate – convictions as a share of cases in which trial was completed – for child rapes, under Sections 4 and 6 of the Protection of Children from Sexual Offences Act (Pocso) was 28.2%, slightly less than the 30.7% figure for all crimes against children. This gap was much bigger in metropolitan cities, with the respective figures being 29.3% and 41.8%. These figures suggest that the law is equally incapable in dealing with rape against children in big cities and smaller towns and villages.
The 2015 Crime in India report gives a more nuanced picture on this count, as it gives details of not just convictions and acquittals but also the status of persons who were in custody, for each crime-head. These figures present a disconcerting picture regarding sexual offences against children. For every one person who was in custody during the stage of trial under Pocso-related crimes, 1.2 persons were on bail during the state of trial at the beginning of 2015. This number doubled to 2.4 by the end of the year. These figures were 2.8 and 3.2 for all crimes against children. In absolute terms, the number of people who were out on bail while being tried under Pocso increased from 5,608 to 17,159 between the beginning and end of 2015. Of the 2,501 accused under Pocso-related crimes for which trials were completed, only 1,072 were convicted (See Chart 2).
In principle, there is nothing wrong in accused being granted bail by the courts. However, the Aligarh incident, where the perpetrator had a history of committing a similar crime, underlines the potential hazards of such criminals roaming free and committing more such crimes while trials remain pending.
Even the Muzaffarpur case, gruesome as it is, should not come as a surprise to India’s criminal justice system. The Government of India had set up a committee under late justice JS Verma to look into changes to criminal law to provide for quicker trials and enhanced punishments for criminals committing sexual assaults of extreme nature against women in the wake of massive protests against the gang rape of a young student in Delhi in December 2012. In its chapter on Child Sexual Abuse, the committee reports findings from its visit to a shelter home for women in Rohtak, Haryana, where girl children were forced to perform unpaid labour, denied basic food and clothing, and subjected to physical and sexual violence by the director and family members of the shelter home. The committee also noted that there was a close relationship between the person managing the shelter home and local police officers.
The report of the committee is damning in its observations. “We think that there has been a dereliction of duty of all the visitors including the judicial magistrates who visited this home. There has been a gross failure on part of the government of India and its agencies and in its belief of outsourcing its fundamental obligations to do justice to the poor. It is therefore advisable that these homes be taken out of the control of the private organisations and placed under the supervision of High Courts
until the Parliament passes a stringent law and the government finds competent care takers, teachers and psychotherapists, because each one of these children need psychotherapy in order to mainstream them,” it says. That something like the Muzaffarpur shelter home case, where a private party was running a shelter home and indulging in abuse of poor children in connivance with the local law-and-order apparatus, happened years after the Justice Verma Committee’ s recommendations, is testimony to the fact that even government’s own observations have been completely neglected in these matters.
The committee was also critical of the negligence of the police in preventing trafficking of children - the biggest proof of which was seen in the lackadaisical approach of the police in dealing with complaints of missing children by their parents. It cites the notorious Nithari case, where the “parents complaining about their missing children in Nithari, Uttar Pradesh, were themselves suspected by the police of having sold their children”. Such behaviour was seen in the Aligarh case as well, when the police did not act on the complaint of the missing girl initially.
To be sure, the lack of sensitivity of the police, courts, and other arms of the government, is not something which manifests itself only when it comes to crimes against children.
A joint study by the Azim Premji University and CSDS-Lokniti released this year says that only one-fifth of respondents hold a positive view regarding the effectiveness and procedural fairness of the police and courts. In contrast, 41% and 58% of the respondents had a negative view of these two institutions. In fact, the share of respondents who have a negative view of the police and courts is more than that of those who see government officials this way. This is extremely disturbing as both the police and courts are expected to be avenues for redressal against injustice. (See Chart 3).
While, this is not to normalise crimes like the Kathua rape, we will do well to realise that the battle to protect our children from such crimes cannot be won without a radical overhaul of the entire criminal justice system, as well as entrenched patriarchy and insensitivity in our society.