INAUGURAL ADDRESS BY
HON’BLE MR. JUSTICE P. SATHASIVAM CHIEF JUSTICE OF INDIA
AT
THE SOUTHERN REGIONAL CONFERENCE ON PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
ORGANISED BY
THE TAMIL NADU STATE JUDICIAL ACADEMY
AT
JUDICIAL ACADEMY, CHENNAI
ON
16.11.2013
A very Good Morning and warm greetings to each one of you assembled here today. At the outset, I must appreciate the candid effort of the Tamil Nadu State Judicial Academy for organizing conferences at frequent intervals to deliberate on topics of contemporary relevance. This occasion is yet another remarkable effort by the Academy in collaboration with National Institute of Public Cooperation and Child Development, under aegis of Ministry of Women & Child Development, New Delhi to organize Southern Regional Conference on Protection of Children from Sexual Offences Act, 2012.
India is a home to about 430 million children and as a consequence rights of children and their aspirations are of paramount importance in our march towards an inclusive and equitable society. Since independence, India has developed its own jurisprudence and the recognition of their rights. Our Constitution guarantees several special rights to , such as free and compulsory primary education to between the age group of six to fourteen years, prohibition of trafficking and forced labour of and prohibition of employment of below the age of fourteen years in factories, mines or hazardous occupations. In succinct, the Constitution of India is wholly committed to combat the exploitation of children in any form.
Child sexual abuse is not a recent phenomenon. It persisted across ages yet a very large percentage of population of India feel that this is a largely western problem and that child sexual abuse does not happen in India. But the increasing crime rates in this regard are speaking otherwise. As defined by the World Health Organization, child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or that violates the laws or social taboos of society. It is obvious that child sexual abuse threatens the vitality of our communities.
The Protection of Children from Sexual Offences Act, 2012 (POCSO) is a landmark legislation as it is the first law enacted, which exclusively addresses the issue of child sexual abuse in India. Child abuse is shrouded in secrecy and there is a scheme of silence around the entire subject. In fact there is a well-entrenched belief that there is no child abuse in India and certainly there is no sexual abuse in the country until this belief was shattered by the study undertaken by the Ministry of Women and Child Development on Child Abuse in India in 2007. Few glaring factors are:-
· 53.22% children reported having faced one or more forms of sexual abuse.
· Children on street, children at work and children in institutional care reported the highest incidence of sexual assault.
· 50% abuses are persons known to the child or in a position of trust and responsibility.
· Another striking factor, which was revealed in the study was that most children did not report the sexual abuse to anyone. Fear of social stigma, a fear that they will not be treated sympathetically, an unwillingness to implicate relatives, and other factors dishearten children and their families to come forward.
These distressing facts only highlight the gravity of the situation prevalent in our country. Solitary way to overcome this issue of child sexual abuse is to create an enabling environment through empowered legislation and by making effective policy on child protection and their successful implementation.
The enactment of POCSO Act is one such genuine attempt by the legislators to create the desired enabling environment by empowering the children and strengthening the legal provisions for their protection from sexual abuse and exploitation. The Act purports to protect persons below the age of 18 years from offences such as sexual assault, sexual harassment and child pornography, all of which have been accurately defined and are accompanied by rigorous punishments proportionate to the gravity of the crime.
In fact, the wisdom of the legislators is well brought forth in Sections 5 and 9 of the Act which overtly classifies and penalizes the act of penetrative sexual assault and sexual assault by a police officer, member of armed forces, public servant, being on the management or on the staff of a jail or remand home or protection home or observation home as aggravated penetrative sexual assault and aggravated sexual assault respectively to severely reprimand the persons who commit such offences despite their high status and responsible post. These provisions send out a strong message in general, which will aid in wider curbing of such offences by public servants and by persons in responsible posts.
In late September this year, after noticing numerous complaints from various quarters about the ineffective functioning of the shelter homes, children’s home, special home after care organization etc., I have nominated Mr. Justice Madan B. Lokur, Judge, Supreme Court of India, as a one man committee to suggest improvements in the working of the Homes and organization to effectively implement the objectives envisaged by the Juvenile Justice (Care and Protection and Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Rules 2007. Similarly, I also requested all the Chief Justices of High Courts to nominate a puisne judge on similar lines for better and effective implementation of the provisions of the Act and Rules at the State level and to conduct regular inspection of the protection homes.
Child sexual abuse is a critical pattern of crime which, if not dealt appropriately, the interest of the child will be at jeopardy. Thus the judicial officers, public prosecutors, the investigating team comprising of the police and Medico Forensics, the State Legal Services Authorities and the Juvenile Justice Boards must coordinately work for furthering the interest of the child. The POCSO Act provides for the establishment of special courts to deal with the offences under the Act. In order to secure an effective implementation of the Act, recently the Apex Court has directed all the states to designate special courts at the earliest possible endeavor.
PROTECTING THE CHILD
At the center of every child sexual abuse prosecution is the story told by the child. The child's story, in the form of the initial disclosure of abuse, is usually the starting point of the investigation; and the child's story, in the form of the evidence he or she gives at trial, is usually the foundation of the prosecution case. Thus, the fundamental objective that needs to be taken into consideration in all child sexual abuse case is the interest of the child.
Sexual abuse can itself have dire long term negative psychological consequences for its victims, but the degree of psychic trauma is as much and perhaps more dependent on the way the child victim is treated after disclosure than at the time of the offence itself.
For ensuring that the levels of psychic trauma are kept at minimal the following two aspects must be looked into: first, minimizing the impact of the investigation; secondly, minimizing the trauma of testifying. Let us deliberate distinctively on each one of this.
MINIMIZING THE IMPACT OF THE INVESTIGATION
One of the primary causes of stress for children in the investigative phase of proceedings is the number of times a child may have to tell the story of their abuse. Those who may interview the child in the course of the proceedings might include police officers, social workers, lawyers, doctors or mental health professionals. Continually having to repeat a harrowing story may itself be a harrowing experience for children. The investigating officers and judicial officers must try to avoid recurring interviews of the victim.
Videotaping the interviews as permitted under section 26(4) of the Act have the benefit of reducing trauma on the child victim by limiting the number of interviews. Instead of the child having to retell the account of the abuse multiple times to different agencies (law enforcement officials, health care providers, social workers, and prosecutors), the interview can be videotaped and passed along to the different agencies. This encourages and facilitates inter-agency cooperation. Further Videotaping the interviews with child sexual abuse Victims also helps increase the reliability of their statements.
Besides, most disclosures in child sexual abuse cases occur first to family members and then to police officers, doctors, nurses and social workers. Often, police officers, doctors, nurses, and social workers are not specifically trained to question children about sexual abuse; consequently, untrained questioning can lead to errors in interviewing. Remember a child is more susceptible to suggestion, and more subject to confusion or imagined memory, than an adult.
Consequently the problem with untrained interviewing is two-fold. First, without specific training on how to properly question children, questioners are often unaware of developmental changes in language ability and cognition. This unawareness can result in misinterpretations of the child's statements and misunderstandings between the questioner and the child. Second, untrained questioners may engage in suggestive questioning because of professional biases. As a result, these untrained questioners are unable to obtain reliable and valid information.
Keeping in mind these problems, the Act permits under Sections 26(2), 26 (3) & 38 to seek the assistance of a translator or an interpreter, having such qualifications, experience to assist in recording of evidence in such cases. This provision must be availed in appropriate cases by the judicial officers to ascertain coherent information from the child. Likewise, law enforcement officials and advocates who deal with such cases must be specially trained to interact with children.
MINIMIZING THE TRAUMA OF TESTIFYING.
In the common law trial, cross-examination is generally considered to be the most important method of testing a witness' credibility. Indeed, cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth. But there is little doubt that the linguistic strategies usually employed in cross-examination are more likely to confuse or intimidate a child witness than to lead to the 'discovery of the truth'. However, am not suggesting that the defense counsel should be prevented from testing and probing the child's evidence. Thus a middle path must be adhered to uphold the rights of the victim and the accused.
Section 33 of the Act with the heading Procedure and powers of Special Courts and Recording of evidence explicitly states in clause 2 of the Section that the Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child. The court has complete discretion to disallow any question, which is 'confusing, misleading or phrased in inappropriate language'. Therefore it is the task of the judge to communicate and explain to the child the questions put to him or her. In other words, the respective clause ensures complete protection of the child's interests.
Similarly, it is the duty of the judge to set child-friendly atmosphere while recording of evidence and give frequent breaks for the child. It is also the duty of the presiding judge to ensure that the child is not called repeatedly to testify in the court.
SALIENT FEATURES OF THE ACT
· This is the first time that an Act has listed aspects of touch as well as non touch behaviour (eg: photographing a child in a obscene manner) under the ambit of sexual offences.
· The Act incorporates child friendly proceduresfor reporting, recording of evidence, investigation and trial of offences.
· The attempt to commit an offenceunder the Act has also been made liable for punishment for upto half the punishment prescribed for the commission of the offence.
· The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.
· For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused.
· The Act prescribed that the evidence of the child shall be recorded within a period of 30 days of the Special Court taking cognizance of the offence and reasons for delay, is any, shall be recorded by the Special Court.
The media has been barred from disclosing the identity of the child without the permission of the Special Court.
CHILD SEXUAL ABUSE VIA INTERNET
Child sexual abuse via Internet is a quite recent phenomenon. It has developed rapidly since the beginning of the 21st century, perhaps as a consequence of the ease of accessibility of the Internet for everybody. Under Section 67 of the Information Technology Act, 2000, publication and transmission of pornography through the internet is an offence. However, the POCSO Act makes no reference in this regard. In my considerate view the scope for child sexual abuse via internet is bound to amplify in the coming years and we require a stringent provision to penalize the same. In the contemporary times the access to internet via mobile phone have enlarged too, which will only bring in more children prey to the child sexual abuse via internet.
Kids are fascinated by the Internet; it’s a world of opportunity for creativity and growth. The last thing we want is to keep them away from it or leave them in an unsafe space. I am convinced we can create a better regulated Internet service, one where we don’t have to choose between being educational, safe or fun. We can have all three of these aspects if we accept the idea that protecting children is a shared responsibility. Children, Parents, teachers, technology companies, child welfare organisations, judiciary, police machinery – they all have a role.
FINAL REMARKS
Children are often considered the intrinsic wealth of any family setting. This is more so in India, where traditional values of culture still have a very strong bearing on the social institution of a family. It is in the children of India on whom great faith is reposed so as to lead this nation into brighter chapters of the future.
The POCSO Act enumerates numerous initiatives, but as we acknowledge, there will be a difference only if they are actually put in motion. While good laws and policies can be enacted by legislatures and executives, their implementation is frequently a challenge. Experience in India reveals that implementation issues have also stalled attempts to improve the protection of children.
Child sexual abuse is one of the least prosecuted crimes in India. The secretive natures of child sexual abuse, the fact that children are often the only eyewitnesses to the crime, concerns about the reliability of child testimony are few of the causes for breakdown of prosecution case. It is despite these impairments the Court has the duty to strike a balance between the effective prosecution of child sexual abuse and safeguarding the constitutional rights of the accused.
This Conference gains its momentum owing to the diverse participants whose contribution plays a decisive role in conviction of convicts under the Act. The judicial officers, police officers, and prosecutors must work at their best for seeking conviction under the child sexual abuse case. Lapse on any one of them will lead to collapse of case, which indeed will be detrimental to the interest of the victim. Therefore, such kind of offences requires the need for a coordinate approach towards these criminals, with cooperation from all the law enforcement authorities.
Besides it should be the effort of all State legal services authorities, child welfare committees and other related departments to both empower the children and to protect them. This twin end must be strived to be achieved if we wish to eradicate the occurrence of child sexual abuse in India.
It is extremely important to remember that our aim must not only be to protect the children but it should also be about empowering kids to protect themselves. Therefore, by taking many related actions and always keeping an eye on progress, we can keep moving forward.
SUGGESTIONS
1. There must be a periodical review of the POSCO Act’s implementation and effectiveness. Based on the review, government should seek appropriate amendments in consonance with women’s rights and children's rights enshrined in our Constitution and other international documents.
2. The police have a crucial role to play in combating child sexual abuse as they are the first point of contact for anyone initiating a criminal case. The sensitivities required for this role are recognized in the POSCO Act. It is desired that they are adhered to in letter and spirit.
3. Prioritize execution of various child protection schemes and ensure that states correctly employ the funds allocated to them to create effective child welfare facilities.
4. Ensure sufficient resources for statutory bodies and other responsible organizations like the National Commission for the Protection of Child Rights to monitor the effectiveness of the child protection legislations.
5. There is a need for greater awareness of the POCSO Act among adults, parents, caregivers, teachers and people in positions of authority. Executive authorities and statutory watchdogs at all levels also need to be sensitized and their capacities built.
6. The members of the judicial institution can richly contribute towards strengthening the implementation of this legislation and ensuring the operation of an efficient, fair and child sensitive justice mechanism.
7. The States must consent to reserve sufficient number for child hotlines across the country and I call upon all States to make every effort to implement the hotline swiftly to put children’s safety and security first.
8. To prevent repeated crimes, the companies can adopt to safer recruitment policies, ensuring that convicted offenders are temporarily or permanently prevented from getting jobs involving regular contact with children.
9. To teach online safety in schools. We need teachers and parents to get involved and make sure they deliver their promise. They can help the children learn about the risks they may come across online, and what to do if they think they face a problem.
10. But more than ever, we need to listen to young people’s views – and to keep raising awareness.
Hence it is in the best interests of the future of this great nation, that the most cherished rights of our young ones are protected from the evils of child abuse.
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