Mistrial of Justice
The unabating violence on women and children in India continues to rattle the country's reputation. India ranks 131 of 153 in the Global Women, Peace and Security Index which looks at inclusion, security and justice. Entrenched sexual violence is reflected in increased reporting and personal discussions on such crimes. Perpetrators are protected in the name of patriarchy, honour and religion. The ghastly rape incidences in Kathua and Unnao were followed by the incessant clamour in demanding for death penalty for the rapists. The political establishment found it easier to give in to the demand for death penalty than strengthening the existing mechanisms for victims of sexual violence. With the President’s assent to the ordinance on Protection of Children from Sexual Offences (POSCO) Act on April 22nd 2018, death penalty for rapists of girls below 12 years of age became another grim reality to the criminal justice system.
A feeble and biased institutional mechanism makes it almost impossible for sexual abuse victims to find justice. The problem is compounded in the case of young children who are further victimized because of ineffective implementation of the legal safeguards meant for them. The introduction of the death penalty as punishment for rapes of girls less than 12 years of age has exacerbated the already existing issues. The young victims are known to be at risk of further psychological trauma and abuse as they interact with an insensitive and apathetic criminal justice system. Death penalty seems to be the instant solution that the public believes will deter men from committing heinous crimes against young girls and women. Overlooked is the fact that in the majority, in 94.6% of the cases, the perpetrator is known to the victim.
With the new criminal law amendment in place, there will be additional pressure on the child victims not to report against their own family members or someone from within the known circle. In many cases, the perpetrator could be the sole earning member of the family and the child will be under unimaginable pressure to either not report at all or if criminal trial is underway not to provide true testimony in the court of law. The establishment of fast track courts with a deadline of four months for completion of both investigation and trial will put tremendous pressure on the police. The police in India are already grappling with lack of infrastructure and trained personnel to deal with daily chores. They are yet to separate investigation and prosecution despite a 2006 Supreme Court directive. Added to all this, a rushed up investigation and trial only risk a mistrial of justice and the child victims of sexual offences further traumatized.
Various aspects of the new law will only lead to underreporting of sexual incidences which already faces a perpetual danger of being hushed up in the name of honour. An ill thought out executive order with death penalty as punishment for sexual offences against children, absence of robust measures to implement existing child protection laws and an insensitive and incapable police force only proves that children are not the focus in politics.
Dona John is Program Manager for Human Rights at the Regional Office of the Friedrich Naumann Foundation for Freedom (FNF). In this commentary, she is sharing her personal thoughts.