“Faansi dena koi solution nahi hai. Isse crime aur hi badhega. (Hanging somebody is not the solution. This will only increase crimes.)”
“Death penalty nahi honi chahiye. (There should be no death penalty.)”
“Aaj ye ho raha hai ki phaansi de do. Mai to sirf ek sorry ke liye kehti reh gayi. (Today we are talking about death penalty. I wasn’t even given an apology.)”
These were parents of three survivors of child sexual abuse speaking at the Press Club of India in Delhi, a day after the President gave his assent to an Ordinance that makes rape of a child below 12 years of age punishable with death, apart from making other changes in laws concerning child rape.
“If the government and the parliament is really committed and is serious, there are substantive changes that need to be made, but none of that stands reflected in this Ordinance,” said human rights lawyer Vrinda Grover at the meeting called to urge the government to rethink the amendment. The reason, the panelists said, why child rape or abuse is a problem is not the lack of a strong punishment, but that of acknowledgment of such cases, their timely and sensitive trial, and of conviction.
“The first thought that came to my mind when I heard about the Ordinance is that it takes away attention from what we think of as the lesser crime or the not-so-deserving sexual crimes,” said Bharti Ali, co-director of HAQ Centre for Child Rights, referring to the Ordinance as a knee-jerk reaction to the Kathua and Unnao rape cases.
Most panelists at the meeting had an ominous prediction, summed up by former Chief Justice of the Delhi High Court AP Shah when he said, “It (the Ordinance) will cause considerable harm.”
Shoddy Police Investigation
Rakesh* would understand what changes are needed instead of the death penalty law or the implication of the ‘lesser crime’. The manager of the play school where his three and a half-year-old child studied at sexually abused her barely a few days after the 2012 Nirbhaya case.
“At 9 in the morning we were sent to the police station. Until 9:30 in the night, we were waiting for an FIR,” he said. “‘Beta kahan pe touch hua? Kaise touch hua? Aapko dard to nahi hua?’ these are the common questions which are asked by the police officer,” he added.
A couple of days before his child’s statement was to be recorded, Rakesh was threatened and asked to settle the matter outside of court, then assaulted for not agreeing. False cases were also foisted on him, he says.
Similar to the case of Rakesh’s child is that of Swati’s*, the only difference being that the accused in the case of Swati’s child is her father. “The police were just not ready to listen to me, as if I was the one lying, and everybody else was telling the truth. I had to wait from 9 in the morning to 1 in the night,” she said.
Such delays, NCRB data shows, continue beyond the stage of filing an FIR. In fact, with the resources getting stretched at police stations, the number of cases where investigation doesn’t get completed in a year has been increasing over the last decade and a half. While only 14 percent cases to be investigated remained pending at the end of the year in 2001, such pending cases increased to over 30 percent in 2016.
This has happened despite an amendment in the Indian Penal Code in 2013 that makes not following lawful procedure in registering such cases punishable with a prison-sentence for public servants. “Whenever a case has come to light, all that happens is some police officer would either be transferred or suspended. No accountability is ever created through the law,” said Grover.
This is also what makes Bharti Ali wonder why the demand after the Kathua and Unnao cases was death penalty, when the outrage was about a shoddy investigation. “I still haven’t been able to make that connect in my head,” she said.
With the punishment for child rape now the same as murder, Swati wonders if the investigation will even yield results. “If death penalty is the punishment, they (the perpetrators) will murder and try to remove the evidence against them,” she said.
Courts Not Helping
“For the judgment alone, the judge gave 6 to 7 dates. The result? Acquittal,” Rakesh rued. He has now appealed in the Delhi High Court, and the case continues.
Pooja’s* ordeal was slightly different. After a group of children from the school of her son sexually abused him, she too had a difficulty in filing an FIR. What was worse is that she did not even know where the case was being heard.
“I asked the police officers where my case is being heard. They told me, ‘It’s being heard in the court’. I didn’t know that there is a children’s court too…I kept searching the entire Saket court, but I didn’t find them,” she said. And all Pooja wanted was an apology from the children, so her 13-year-old could lose the shame of being abused.
For her, therefore, it’s not death penalty that is the answer to such cases. “If somebody is hanged, they will just die. If they die, they’ll be free. Hanging is not a solution to this problem. The person must also be made to realize (their mistake). If their parents (the children in conflict with law) couldn’t teach them…could it not be said in the court that they must be made to apologise?” Pooja said.
It is problems such as those faced by Pooja and Rakesh that Justice AP Shah sought to highlight. “I don’t see any change in the criminal justice system today,” he said, citing the pendency of cases in courts, the lack of special courts, and the low rate of conviction.
“POCSO would have been a good law if it was implemented,” Rakesh said. This is also reflected in the cases of child rape both before and after the law was enacted. An analysis of NCRB data shows that conviction in child rape cases has been dropping. While around 39 percent such cases where trials were completed ended in conviction in 2001, convictions have dropped to 28 percent by 2016.
Fixing this isn’t impossible, Grover said. Arguing for trained prosecutors and institutions such as the Enforcement Directorate, she said, “Coming to a one-off training does not help. That cadre of prosecutors, (which) only and only deals with those kinds of crimes (is needed).”
Ali, lamenting that changes based on selective cases are not the answer, said, “The POCSO Act was brought because there was a study conducted by the Ministry of Women and Child Development that showed that there was a need for a special law for children. What is so special about this law, about this system? You need to work towards that.”
*Names changed to protect the identity of the survivors.