The Protection of Children against Sexual Offences Act (POCSO),2012, amendment in 2019 has shown a remarkable increase in the penalisation of sexual assault against children, now including the death penalty for cases of aggravated penetrative sexual assault. Though there are multiple ethical questions that are raised for the use of capital punishment as a deterrent to such crimes, one must introspect on whether those perpetrating these crimes are in fact deterred by any law. Since the law’s implementation from 2012 there have been increasing cases of child sexual assault registered with each passing year, the 2016 NCRB report stated that the number of cases registered under the Act had grown by 178.6 percent in 2014 with no reduction in the following years (THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT) BILL, 2019: Statement for Objects and Reasons, 2019 ).
These numbers though disheartening also show that parents have also grown aware of the law and have begun to utilise it. The Unnao case highlights the multiple failures of the POCSO Act with intermediaries such as the police unwilling to file the complaint till the passing of a year, despite the fact that the law states that the cases must be tried within that period of time. Despite such instances, there has been no amendment in the law that looks into effective penalisation for the role of other intermediaries in the protection of those accused of the sexual assault of minors.
According to the Act as it stands the only form of penalisation for anyone caught in the abetting of the accused haven’t been clearly defined in the law, so if someone was to threaten the victim’s family and turn them into hostile witnesses it wouldn’t be tried under POCSO directly. In the case of Unnao the multiple individuals it has taken to orchestrate the various acts of violence would not be tried under the fast track courts, because abetment is charged under different legislation. We know in multiple cases that victims turn hostile, often due to intimidation by the accused and external help. Thus ensuring that cases are acquitted, protecting serial offenders. Though one may not be able to deter a serial offender, those aiding him should be dissuaded as far as possible. In this aspect, penalisation must be looked into the abetting of cases under POCSO with a much more intensive approach. In the case of the Kathua rape case involving the murder and rape of an eight-year-old child, large groups protested the incarceration of the accused. This example highlights how there isn’t any level of deterrence from the Act, it is in this way that the amendment doesn’t understand that the accused alone isn’t an assaulter but all those aiding him to promote sexual assault. Therefore with this degree of insulation, through social networks and power equations, capital punishment does nothing to change the social context of the individual. For that, the trial actually has to occur, for that to occur the victims and their families shouldn’t be threatened or coerced into silence.
Despite the increase in the number of cases registered under the Act (with the overall number of cases for the rape of children in 2016 were 19,765 cases (Tiwary, 2017 ), how many accused of this crime actually go to prison remains unclear. When looking at details for the number of incarcerated individuals there exists no clear differentiation in the 2016 NCRB report regarding the child sexual offenses and other forms of rape. However, we do know that in the case of Mumbai 17percent of incarcerated prisoners in the city were tried under POCSO (Hafeez, 2019 ). This could also be a product of the fact that it was a metropolitan hub, access to courts, legal aid, police stations, hospitals, etc all aid in the prosecution of such cases. Yet the states which have shown some of the most massive increases in the registration appear to be the states such as Madhya Pradesh, Uttar Pradesh, Odisha, etc (Tiwary, 2017 )which have a higher rural population belt.
The trying of those cases in a fair manner needs to be investigated and the incarceration rates for these states need to be verified. One of the improvements to the trying of such cases is the creation of tribunal courts for districts and towns with over 100 cases pending under POCSO mandated by the Supreme Court (Bureau, 2019 ). The judgment hopes that by doing so there could be swifter access to justice in the coming years.
However, justice does not merely begin from trying in the court it is important to look into the manner in which children are being approached in terms of medical professionals and police officers during the filing of the FIR. We know that the law attempts to ensure that the victim should be made to feel comfortable when filing the charge, that the filing of the FIR could even be done outside the police station in a place the child feels safe. Despite this and other aspects of the legislation ensuring the special courts for children should be comfortable spaces for them, often in the case of Karnataka, there have been instances where children were seated next to the accused in the waiting rooms of the special courts (Kothari & Ravi, 2016 ).
Another important Amendment to POCSO was the inclusion of a fine towards the victim and their family in addition to other incarceration charges. The fine is to be calculated based on the victim’s medical expenses and rehabilitation due to the sexual assault case. As most victims will require medical assistance for a long period of time with regards also to mental health aid and physical aid, the fine should take into account future costs incurred by the family over a longer period of time rather than the immediate medical cost of the child due to the sexual assault.
The author has previously taught as a teaching assistant for the Institute for Public policy, National Law School of India University.