July 24, 2019
Abir Ranjan Biswas speaks on The Protection of Children from Sexual Offences (Amendment) Bill, 2019
Thank you, Sir, for allowing me to speak on the Bill.
Nelson Mandela famously said, “There can be no keener revelation of a society’s soul than the way it treats its children”. The irony is that I recite this quote in times when numbers reveal that our children are not safe. The Supreme Court registered a PIL seeking a concerted and concrete response by the nation towards zero tolerance of sexual assault on children. Most astonishingly, 24,212 cases of child sexual assault and abuse have been registered from January 1 to June 30 this year. Around 6,600 of these went to trial in this period and shockingly, only 4 per cent have been decided.
POCSO is a gender-neutral law and we welcome this Bill. The intention of the Bill is to curb child sexual abuses by introducing stringent punishment. This is very praiseworthy. The Bill introduces a definition for child pornography to fill the lacunae that existed in the law till now.The Bill also internalises technological advances by laying down provisions for penalising child pornography transmitted or stored in a wide range of mediums.
This legislation faces a limitation while attempting to bring about a social change. In the words of Dr Ambedkar, “For regeneration of a community; social, economic and moral forces are far more vital and political forces are only a means to the social, economic and moral regeneration of a people.”
On this note, I would take this opportunity to point out the flaws of this Bill in three parts.
Firstly, the drafting of the Bill is ambiguous in certain instances. The Bill falls flat on its promise of strict punishment for child pornography. In some instances, the perpetrator may just walk away with a paltry fine, the amount being Rs 5,000 or 7,000. I feel this is very insignificant.
Amended Sections 15 Clause (1) and 15 Clause (2) prescribe different punishment for the similar offence of storing pornographic material with the intention of transmitting child pornography. The first clause only prescribes a fine. The second clause punishes the offence with imprisonment or fine. So why does the bill prescribe two different punishments for same nature of crime? This is very confusing for us.
Under the amended Sections 15 and 45, child pornography has to be reported to a designated authority. The Bill delegates rule-making power regarding the manner of reporting but not regarding the designation of such an authority. I would seek clarification from the Honourable Minister regarding designation of such authority and about why there isn’t any clause regarding this in the Bill or the Memorandum of Delegation.
The clause classifying ‘sexual assault on child in course of sectarian and communal violence’ as ‘aggravated penetrative sexual assault’ has been substituted by ‘violence during natural calamity’. These categories of offences are not compatible. The purpose of this substitution is unclear specially in the times of communal unrest that the country stands witness to.
The Bill lays down that the fine imposed on the perpetrator shall be transferred to the survivor. It would be more prudent to have a fund that will immediately extend an amount to the survivor of child sexual abuse, which could be later exacted fromthe perpretator. This fund will act as a buffer to absorb any delay or inability in the collection of fine from the perpetrator, hence safeguarding the interest of the survivor.
The Bill does not consider observations made by the Madras High Court suggesting that consensual sex, physical contact or allied acts after the age of 16 be excluded from the ambit of the POCSO Act. The POCSO is often misused to cover up cases of elopement or inter-caste marriages.
The Bill should ideally provide for some safeguard to those being harassed under POCSO, since the Amendment would increase harassment as the law is being made more stringent. I maintain that there should be punishment for abuse, but there should also be an attempt to curb the misuse arising out of age of children fixed at 18 years in this case.
Secondly, I would draw the attention of the House towards the poor implementation and ineffectiveness of law related to child sexual abuses. Studies have shown that higher punishments do not have a deterrent effect on the rate of crimes committed. Year after year, the punishments prescribed for sexual assault on children and women have increased, but the rate of offences of this nature has shown a steep rise. This is reflective of the failure of state machinery, and is not the result of any lacuna in legislation.
We have always known that justice delayed is justice denied. Yet, most trials are delayed or the perpetrators are often acquitted on grounds of insufficient evidence. This process adds to the mental agony of the survivors. This Bill needs to look into it.
The courts are overburdened with cases and although a time limit of one year has been set for deciding cases under POCSO, it is mostly not met.
I have a close friend in the judiciary, and we were discussing things. What he had to say about the difficulties he faced even when knowing a person is guilty is that he slips out through the loopholes. He has said that there is a need to have dedicated courts, and not just designated courts, for the purpose which would make the work easier. He was also of the opinion that these courts should not be in the normal premises of the courtrooms where we often have very tainted persons, who are already found guilty or under trial for heinous offences. Rather the atmosphere of these courts should be completely different, they should be placed somewhere other than the courts where hardened criminals are tried.
Another thing that I would like to point out, that he had to say, is that we lack proper reporting of DNA material and of other substantial medical evidence that need timely reporting. Thus it is imperative that we look into the timely reporting of it.
My other suggestion is regarding awareness of the law. Workshops should be conducted for children to create a safe space for them to recognise and speak about the issues of abuse. Awareness of adults is not enough, since most children are abused at the hands of closed ones, who often enjoy their trust.
There are other matters which are also matters of concern. As an Honourable Member was saying, there is also the matter of consent in cases where the adolescents are between the ages of 12 and 16, when such a thing is done without the consent of the victim.
Sir, another thing I would like to mention is the treatment cost. Until and unless the State provides a substantial part of the medical treatment, we may see the survivors being deprived of comprehensive medical treatment.
Another important thing is that there are many cases of consensual sex between the ages of 16 and 18. Sexual intercourse between an adolescent and an adult is considered illegal under the POCSO Act, 2012 because there is no exception granted under this Act under which an act of sexual encounter with a person under 18 years of age is an offence irrespective of the consent or gender or marriage or even the age of the victim. However it is proposed any act of consesual sex that may include penetrative sexual assault should not be an offence when it is between two consenting adolescents, or both the adolescents will be charged. This is gender neutral. If both of them are consenting and both are under the age of 18, both of them are being charged with rape.
The latest amendemnt to the Indian Penal Code concerning rape laws, made in 2013, has fixed the age of consensual sex at 18. And here we are stressing upon reporting. So if this goes on, what will happen to the practises among certain tribals, specially in Kerala that we know of? We wil register the highest number of rape cases in the world. Most unfortunately and deplorably, we will be looked upon as the rape capital of the world which we cannot afford to do.
Though the POCSO Act says that abusing children is a punishable offence, a few challenges remain to be answered. A multidimensional and multi-tier approach, inlcluding access to psychological support, should be made available to deliver holistic, comprehensive care under one roof for victims of child abuse.
Larger societal changes are brought not just by amending the written words but by effecting and appealing to the psyche of the people who collectively lie at the heart of this society, and invariably for each legislation.
Thank you, Sir.