On July 24, the Rajya Sabha passed the Protection of Children from Sexual Offences (Amendment) Bill 2019, which seeks to provide more stringent punishment, including death penalty, for sexual crimes against children.
The Bill includes amendments to sections 4, 5 and 6 of the Act to increase punishments from seven to 10 years, from 10 to 20 years and from 20 to life imprisonment and death penalty. Besides, Section 9 of the Act, that deals with 'Aggravated Sexual Assault', is also sought to be amended to protect children from sexual offences in times of natural calamities and cataclysms, and moreover the definition of 'Sexual Assault' has been extended to incorporate administration of hormones or chemical substances to children to attain early sexual maturity for the purpose of penetrative sexual assault. The amendments also penalize the transmitting of pornographic material to children and propose to synchronise it with the Information Technology Act.
The government considers the bill as a "notable decision to safeguard the rights of the children and protect them from sexual offences". In a statement, the government said, "The amendment is expected to discourage the trend of child sexual abuse by acting as a deterrent due to strong penal provisions incorporated in the Act. It intends to protect the interest of vulnerable children in times of distress and ensures their safety and Dignity."
Of course, the intention behind the Bill is laudable. However, the rhetoric over severe punishments should not deflect our attention from the problems related to implementation of POCSO Act so far such as lack of adequate special courts, lack of sensitization for investigators and prosecutors in dealing with child victims, poor rate of convictions etc.
Certainty of punishment acts as a better deterrence than its severity
Certainty plays a more crucial role in deterrence than severity — it is the sureness of being caught that deflects an individual from carrying out wrongdoings, not the dread of being punished or the severity of the punishment. A noteworthy contrast between 'Deterrence' and 'Incapacitation' needs to be drawn here. When individuals behind bars are balked from committing additional crimes, that is incarceration as incapacitation but when he or she, before committing a crime, starts dreading the results, if caught, and thus refrain from committing future crimes — that is incarceration as deterrence. Indian laws have so far had the option to accomplish the former but have flopped pitiably miserably in even touching the surface of the latter.
Poor conviction rates under POCSO
The poor conviction rate and epidemic rise in crimes under POCSO itself leaves an unpleasant picture of the manner in which the criminal justice system is being administered and managed in India
As per the last available data from the National Crime Records Bureau 2016, less than three per cent of child rape cases that came up before the courts ended in convictions.
While hearing a PIL in 2017, the Delhi High Court was told that only 18.49 per cent of people accused of child sexual abuse under the POCSO (Protection of Children from Sexual Offences) Act were found guilty by courts in the capital in the first half of 2016. A report by the National Law School Bangalore, which examined 667 judgments between 2013 and 2015, highlighted this predicament. It expressed that alleged victims and their family members turned hostile in "67.5% cases, and in just 26.7% cases these people dared to testify against the accused".
It is worth mentioning that once a POCSO case is filed, the long-winded procedure provides the accused more than enough time to coerce and intimidate the victims or their families to backtrack on their complaints. This situation turns out to be more complicated when the accused is someone from the family itself. The conviction rate drops even further due to these circumstances.
According to HAQ's analysis of POCSO cases it handled since 2013, the average time taken for completing a child's testimony in seven of the 10 cases was 242 days, which is eight months as against the mandated 30 days. On an average, these cases remained pending for 69 months, which is 5.75 years, as against the mandated period of one year.
The provisions of capital punishment might provoke the accused to murder the victims and increase the risk of sex offenders doing away with their victims to destroy evidence and to ensure that there is no principal testimony. This proposition is widely feared among various NGOs and Child right activists. Everyone wants the perpetrator to be punished but not at the cost of the life of the victim.
Taking suo moto notice of the huge pendency of POCSO cases, the Supreme Court has directed the establishment of special courts in each district.
Simply having laws and numerous guidelines do not per se guarantee protection of the child. The focus should be more on taking measures to ensure faster and efficient investigation and prosecution of POCSO cases.
(The author is a a 2nd year Law student pursuing BA.LLB at Gujarat National Law University. He can be contacted at firstname.lastname@example.org. Views are personal)