In most POCSO cases, since the perpetrator is well known to the victim, public prosecutors themselves encourage a compromise
The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted by the Government of India to provide an extremely strong legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography. This, while safeguarding the interest of the child at every stage of the judicial process, by incorporating child friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
With 472 million children below the age of eighteen as per the 2011 Census, India had the largest population of children in the world when POCSO was enacted. Yet, with a conviction rate of less than 30%, the POCSO Act is anything but effective.
This series looks at how in practice, POCSO is simply not child-friendly on many fronts. The ecosystem is skewed in favour of the accused who walk free seven out of ten times.
10-year-old Roopa* was taken to the temple priest one day by her parents who had seen her fingering herself at home. The priest after talking to the child revealed to the parents what the child had told him.
27-year-old Kannan*, a distant cousin, had been sexually abusing the girl for some time. The child unaware of being wronged had become normalised with the behaviour. This was why she was found openly doing it at home.
Once the parents came to know, a complaint was registered and Kannan arrested.
Medical reports remained inconclusive and devoid of material evidence or witnesses, the case hung on the victim’s recollection of the abuse.
When the case came to court the public prosecutor tried for a settlement to be arrived at.
But the child’s father Manickam*, insisted on getting justice and chided at any idea of a compromise.
The child narrated the incidents in court as they happened. This so enraged the Special Public Prosecutor that she stood silent through the trial and cross examination.
During the cross examination which the Public Prosecutor never objected to, the defense lawyer brought out inconsistencies in the child’s accounts of the incident and eventually the court ordered an acquittal.
“Without money no one wants to fight for you,” is how Roopa’s father Manickam puts it. Talking about the whole episode is a strain for him. “Court has no meaning. There is no purpose to registering complaints. I tried to get justice for my kid, I didn’t get it. The police supported me, my daughter told exactly what happened, but in the court we still got no justice,” he says.
“We did everything we could, but whoever has money gets to walk free, no matter what they do. What is the purpose of talking now?” he asks. “I tried to appeal, but our case has not come for consideration even now.” The time delay he says is tiring.
When asked whether the accused offered money he is quick to reply - “Why would I take money? I wanted justice for my daughter. I didn’t get justice.”
More than the abuse, it is the helplessness of seeing the accused walk out free that hurts him today he says.
“I did everything I could, everything I was asked to do. If I had money to offer, maybe things would have been different,” he ends the conversation midway. “No purpose talking now.”
If such an incident were to happen to someone he knows, he might think twice before reporting he says. He realises that police are mute spectators in the business of handing out of justice.
“The police were supportive throughout, the court was useless,” he repeats.
“In some courts what happens is that before trial begins, an attempt is made to settle the case through negotiation by the Special Public Prosecutor themselves,” says the head constable in whose station Valarmathi’s* case was lodged, referring to the court where her case is being heard.
“The Special Public Prosecutors try to settle the case through negotiation in consultation with the accused and the defense lawyer. They are thoroughly corrupt. Instead of standing with the survivor and fighting for their justice, they bargain for personal gain,” says Sherin Bosko, a social activist.
She narrates a scene she witnessed. “In one instance the PP called the survivor’s family into their room and told them to settle. The defense lawyer and the accused were given chairs, the survivor’s family, who were poor, were made to stand.”
“This is unfortunately a process that happens in the larger criminal justice system,” reasons Akila, a lawyer based in Chennai when asked about corruption amongst Special Public Prosecutors. “Not sure if it is particularly high in POCSO cases alone,” she adds.
“In POCSO cases, Public Prosecutors don’t favour the victim. They don’t fight for the child involved. If the family is poor especially, negotiations and settlement attempts in favour of the accused are openly done,” says Norlene.
POCSO cases are heard in Special Courts named as Mahila Courts. The Lede visited one such court to check the veracity of the claims that the Special Public Prosecutors openly act as mediators between the accused and the victims and spoke to the Special Public Prosecutor.
More on that in the next part.
(We investigate more on corrupt public prosecutors in Part 5 of the series)
(*Names have been changed to protect identity)