This is the first post in a three part series: second post on PCMA, third post on POSH (coming soon)
Central legislation that seek to address gender injustices, including violence against women and children, include: The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), The Prohibition of Child Marriage Act, 2006 (PCMA) and Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH). This 3-part post analyses the implementation of these legislation in the state of Tamil Nadu.
The Protection Of Children from Sexual Offences Act, 2012
The POCSO Act is a gender-neutral law that came into force in 2012 with the intent of preventing sexual offences against children. It mandates the establishment of special courts to bring to justice criminal offenders, while protecting the privacy and confidentiality of child-victims. Further, it mandates the establishment of special procedures for conducting investigations and prosecutions. For example, during a trial, advocates cannot directly question a child-victim. Rather, they have to communicate their questions to the Special Court, which will in turn communicate them to the child. Further, the questions posed, cannot be “aggressive” questions.
There are several issues with the implementation of the POCSO Act in Tamil Nadu. First, the number of pending POCSO cases is increasing. Second, the common methods used by doctors to examine victims violate their privacy. Third, victims are rarely provided with interim compensation, made available to them by the Act.
Cases filed under POCSO are piling up in the State of Tamil Nadu. In 2018, 2003 cases under the POCSO Act were pending in Tamil Nadu. 219 of these cases have been pending for the last three years, 509 cases have been pending for more than two years, and 1275 cases have been pending for one-and-a-half years. The data on conviction rates reveals that the number of cases registered under the POCSO Act may have increased over the years, but the conviction rate remains alarmingly low. For instance, in Tamil Nadu in 2017, 1,586 cases were registered under POCSO. Of these, charge-sheets were filed in 703 cases and the courts convicted the accused only in eight cases and 59 ended in acquittal.
Despite the ban on the two-finger test, used for examining victims of sexual violence, it is commonly used in Tamil Nadu. In 2013, the Supreme Court implemented a ban on the two-finger test in its judgement in Lillu @ Rajesh and Anr. V. State of Haryana [(2013)14 SCC 643]. The Court held it violated the right to privacy. Further, in 2014, the Ministry of Health and Family Welfare issued alternative guidelines for conducting such tests. Nevertheless, the two-finger test is still commonly used in Tamil Nadu. For instance, in the past two years, the two-finger test was conducted in almost all of the 179 rape cases involving children in Chennai.
In the context of relief and rehabilitation, the Act enables the special court to order interim compensation to the victim, either suo moto or upon an application made by the victim. However, the special court has only awarded interim compensation in 3% of all POCSO cases in Tamil Nadu, in the 2013 to 2018 period. The court only awarded interim compensation in 95 POCSO cases, out of the 3153 POCSO cases that have been committed to the court in 25 districts in Tamil Nadu.
Child sexual offences are violative of the right to life, liberty, dignity, and protecting children from such violence is essential to secure their right to bodily integrity. It is essential for the Government of Tamil Nadu to strengthen the implementation of the POCSO Act by recognising the true objectives of the POCSO Act.
Edited by Saumya Dadoo