Vulnerability of child survivors of crime: Urgent need of enactment and implementation of POCSO in J&K

24 Oct 2017 16:26:02


Pankaj Gupta

Recently, the news of Godmen getting into controversy, in India, has been surfacing. They were allegedly involved in murder, rape and other crimes, which was unbecoming of a saint, who is given stature of the god. Whether it is the case of Asaram Bapu, Nityanand, Ramrahim or Maulavi, people have shown faith in them and expected that they shall guide them to the right path. Also, people consider them as someone who is having the magical power to heal their misery. But when such heinous crimes are committed by people of such a revered stature, it raises a question mark that can we trust on anyone? Whether it is Hinduism, Buddhism, Islam or Christianity such self-style Godmen are present in every religion, who are ready to violate people and the women and children are easy prey of theirs. They are powerful enough that no one dares to speak against them. In the state of J&K, where all the central laws are not applicable, such people are more dangerous, as getting them to the book is not a cakewalk. One such incident happened in Mondji, near Sopore town in J&K state, wherein a Maulvi violated a child. The Kashmir police booked Aijaz Sheikh, called Maulvi Sahab by locals, under Section 377 of the state's Ranbir Penal Code and filed a charge sheet in the court. The code was introduced during the reign of Dogra dynasty with Ranbir Singh as its ruler and it is developed on the same line as that of Indian Penal Code applicable in the entire country. Though it is not the first case, in which a Maulvai has sexually exploited a child but it is the first time that someone has shown the courage to speak against him. According to a media report the Maulavi has violated over two thousand boys in a span of 15 years but no one ever dared to confront him. The people in this area and nearby places consider that this Maulavi has supernatural powers and he can help them in resolving their problems by his magical powers. These gullible people take their children to the Maulavi, as per his instructions, in the hope that the ‘Ginn’ that possesses him would remove all their difficulties and open the door of fortunes for them. It is ironical that our beliefs and fear from supernatural powers make us an easy prey of such people in the 21st century. Though many a people have exposed such people but their main focus remained only on Hinduism, whereas such problem is prevailing everywhere in all the religions. The problem is not only restricted to sensitisation of people but legislative also, as the important legislation to protect children from sexual offences viz. The Protection of Children from Sexual Offences (POCSO) Act, 2012 is not applicable in the State of J&K. This particular legislation is applicable in the entire country except the state of J&K, hence, the vulnerability of children of the state increases. The reason for such anomaly is Article 370, which gives power to the State Government to decide on legislative provisions passed by the Central Government.

In a male dominated society, in Kashmir or any other part of the country, getting sexually abused for a male is not acceptable. He is supposed to be powerful enough at all the times and if he meets such an incident, it is difficult for him to disclose it with others. Even the future life of the child gets affected and the male survivor is frowned upon because the element of masculinity attached to him. India is the home of second populous country in the world and the children constitute around 42% of this population. According to one estimate, 50% of children in India are vulnerable and fall into the category of children in need of care and protection. Since, the cases of sexual abuse against children has been rising, the enactment of POCSO Act was right thing in protecting the future of our country. Before, this Act the cases related to child sexual abuse was dealt by other legislative provisions, which were not child friendly.

The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to address the sexual abuse or exploitation of children below the age of 18 years. It is important to mention here that the sexual offences are covered under different sections of IPC, which does not distinguish between an adult and a child. This magnificent Act was formulated in consideration of vulnerable environment for children, making the judicial system child friendly and ensuring speedy justice with minimum trouble to the children. The Act covers various forms of sexual assaults like Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault, Aggravated Sexual Assault, Sexual Harassment of the Child and Use of Child for Pornographic Purposes. The Act considers a sexual assault as ‘aggravated’ when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority like a family member, police officer, teacher, or doctor. It also ensures that police shall behave responsibly and made it compulsory that preferably the SI level lady police officer shall record the statement of the child at his/her residence or place of his/her choice, police shall not be in uniform during the recording of child’s statement, no child shall be detained in the police station during night, the child statement should be recorded as it is, the assistance of interpreter or special educator or any other expert can be taken (in case it is required), medical examination of the child to be conducted in the presence of the parents or any person whom the child trust, women doctor should conduct medical examination in case of girl child, no aggressive questioning or character assassination of the child, in-camera trial etc. The Act covers even the abatement of the crime and the burden of proof is laid on the accused. The media is also barred from disclosing the identity of the child. Further, the child is being protected from re-victimisation, under the Act. The Act has the provision of speedy trial and the court is bound to complete the trial within one year. The Act also makes it mandatory that the case of child sexual assault or abuse are to be compulsorily reported by any person, who is having the knowledge about it and if he/she fails to do it, he/she may be penalised. The Act has the provision of punishment which ranges from six months to life imprisonment, depending upon the nature of the crime against children. The Act also cast the duty on central and state governments to spread awareness about the provisions of this Act, so that maximum number of people, especially children shall be made aware and take legal recourse, if requires.

J&K state has different arrangements with central government, as the concurrence of state assembly is required before the enactment and implementation of any provision, of central government, in the state. Children are the future of our country and shall be provided the safe place. The children of J&K state require a legislation to safeguard themselves from such unwarranted advances. Though in the rest of the country, the implementation of child related legislation, including POCSO, was a matter of concern but in J&K the enactment of such an important legislation is required. The turbulent nature of state makes the children of J&K vulnerable, who can be easily exploited sexually, therefore; such an Act is required to be enacted on an urgent basis. This Act is quite an important piece of legislation that can help the children to get justice and bring the perpetrators to the book.

But in the abovementioned case, this law is not applicable because the J&K assembly has not taken any initiative in this regard and the case has been registered under Section 377 of the state's Ranbir Penal Code instead of POCSO Act. The victimiser is now out on bail but had he been booked under POCSO, his coming out of jail would have been difficult. The unfortunate part is that Article 370 makes it difficult that such an important legislative provision will push through. Likewise, there are many welfare related legislations like Right to Education Act, Panchayti Raj Act etc. which are not being implemented in the State because of the temporary provision of the Indian constitution. I can only hope that sanity will prevail on the law makers of this region and the important legislations like POCSO will see the light of the day very soon.

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