Try 16+ As Adults In POCSO Cases: Top Panel


It has to be said right at the very outset that in a fresh, fine, favourable and fortunate development, according to people familiar with the matter, a top panel has recommended to the Union Government that it should reduce the age for trying people as adults under the Protection of Children from Sexual Offences (POCSO) Act from 18 to 16 to check increasing crimes against children which is certainly a matter of grave concern also as the number of cases are certainly multiplying also very rapidly. How can all this be allowed to go unchecked, unhindered, unaccounted and unpunished under any circumstances? This is a long standing demand also of many women organisations also which has to be taken into account!

To put things in perspective, it must be pointed out that the top committee took note of the irrefutable fact that cases registered under POCSO rose from 32,608 in 2017 to 47,325 in 2019 that is an increase of nearly 45% in two years and made important recommendations to check cyber crime, improve the condition of sex workers and increase police accountability in cases of crimes against women. This should certainly be a matter of grave concern for all progressive minded citizens of India. It also cannot be glossed over that it was also noted that the stringent law was often misused to criminalise consensual relationships.

It has to be borne in mind that in the present circumstances we see that someone between 16 and 18 can be tried as an adult, under POCSO or the Indian Penal Code, only if they are charged with heinous crimes such as murder or rape. This is definitely a glaring loophole in our penal laws which needs to be plugged immediately. The decision usually vests with a Juvenile Justice Board. If tried as juveniles, they are sent to a reform home, not a jail. In addition, a process of rehabilitation is also drawn up.

As it turned out, it is then also pointed out that the Members of the Parliamentary Panel on Home Affairs felt that juveniles convicted of minor sexual offences may grow up to commit more heinous crimes if left unchecked and unaccounted for. Absolutely right! This alone explains why it asked the Union Home Ministry and Women and Child Development Ministry to see if the age limit could be reduced to 16.

In fact, it is my personal opinion that it goes beyond an iota of doubt that for crimes against women, age should certainly not be the criteria. Those who dare to indulge in such reprehensible and regressive acts must certainly be always awarded strict punishment even though I would like to add here that they must be given an opportunity to reform and rehabilitate also and not condemned to jail for whole life but in case of repeated offenders or those who do more than once, no opportunity should be given again nor should any leniency be shown towards them!

It goes without saying that when a men or boy knows how to commit a crime against women or girl then he must be fully prepared to meet the serious consequences also emanating from his cowardly, dastardly and despicable acts! To leave them lightly will certainly only encourage them to commit further more and more such crimes which will affect more and more innocent women and girls which our nation certainly cannot afford under any circumstances! This is what the lawmakers must always keep in mind while making such laws!

To tell the truth, these landmark, laudable and learned recommendations come at a time when there has been an alarming rise in cases of teenage boys raping or assaulting very young girls, some aged 3 or 4. There can be no tolerance for such most dastardly, most despicable and obviously most dangerous incidents of crimes against young girls! It needs no Albert Einstein to arrive at this palpable conclusion!

Needless to state, we also see how several experts too have said that this trend necessitates the move to reduce the threshold for trying suspects as adults. However, it cannot be ignored that some other experts argue that reducing the age would be contrary to the jurisprudence of juvenile justice. A balance had to be strike and this is precisely what the top panel has chosen to do also!

It would be pertinent to mention that the top panel’s recommendations will now be tabled in Parliament as early as next week. The top panel also pointed out earnestly, elegantly and effectively that there was potential of misuse of the law, citing information from states about cases where an 18-year-old boy has been arrested under POCSO for marrying a juvenile girl with her consent. This has to be certainly guarded against and ensured that no innocent is ever convicted. We saw how Vishnu Tiwari was jailed for 20 years and how he was just recently acquitted by the Allahabad High Court! Who will return his precious 20 years?

It cannot be also glossed over that the top panel also commended Uttar Pradesh for its good conviction rate under the law. On an unflattering note, it must be said seriously and sincerely that a huge credit for it certainly goes to the incumbent UP CM Yogi Adityanath who has shown full seriousness to ensure that no criminal is ever left unpunished or let off lightly under any circumstances. It is most unfortunate that he as MP in 1998-99 had strongly voiced his voice in favour of a High Court Bench in Gorakhpur but more than 21 years down the lane we see that Centre has still not catered to his legitimate demand nor has it catered to the legitimate demand of former PM late Atal Bihari Vajpayee who had himself demanded a High Court Bench for UP at Meerut while in his capacity as Leader of Opposition in Lok Sabha in 1986!

It is a national tragedy that UP which is the biggest state of India has just one High Court Bench and that too so near to High Court at Allahabad at just 200 km away at Lucknow where there was just no need for Bench and yet created in 1948 but for more than 9 crore people of more than 26 districts there is not just a single Bench. This despite the unpalatable truth that Justice Jaswant Singh Commission had recommended 3 High Court Benches for UP and one for West UP yet in 2021 there is none! Why Centre pompously announces setting up of two more High Court Benches for a peaceful state like Karnataka with just 6 crore population at Dharwad and Gulbarga in 2008 first as circuit benches and then made full time Benches in 2013 but not a single for West UP which accounts for more than half of pending cases as Justice Jaswant Commission itself acknowledges? This too must be addressed at the earliest for it is UP which tops in maximum pending cases and not Karnataka and Maharashtra where Centre has approved Benches from time to time! This despite the irrefutable fact that it is Maharashtra which tops in Justice Index List and not UP or Bihar where there is not even a single High Court Bench!

In hindsight, it may be pointed out that POCSO which was enacted in 2012 was brought in to ensure that there is a prompt check on mounting crimes against children and lists the maximum punishment as life imprisonment and death. It defines a child as anyone under 18. The Juvenile Justice Act, 2000 which governs the proceedings against minors in India – was amended in 2015 to try some juveniles between 16 and 18 as adults if they were accused of heinous crimes that attracted a minimum punishment of seven years. The change came in the backdrop of the 2012 Delhi gang rape case where one of the accused was 17 and tried as a minor which created a huge national uproar!

Having said this, we ought to keep in mind what child rights expert Swagata Raha says on this that, “For heinous offence, children over 16 can be tried as adult, the provision already exists…This recommendation does not take into account numerous studies and the Tamil Nadu government’s submission that POCSO is being utilized to criminalise relationships.” We also ought to know that Enakshi Ganguly who is the co-founder of HAQ Centre for Child Rights, warned of the possibility of criminalizing consensual sex and said that, “We are seeing a spurt in such incidents across the government. Are we going to institutionalize this now? We need to be in a preventive mode, not a penal one.”

It is worth noting that the panel noted that cybercrime against women and children rose from 4,330 in 2017 to 8684 in 2019 and transcended geographical boundaries. Therefore the top panel recommended that law enforcement agencies across the country coordinate to check such crimes, the people added, on condition of anonymity. This is certainly the crying need of the hour also as better coordination will ensure that criminals don’t escape away unnoticed!

Be it noted, the panel’s discussion also focused its attention on criminals using Virtual Private Network (VPN) – which allow a user to mask their location – to access the dark web, bypass security walls and remain anonymous. It very rightly, reasonably and remarkably recommended that the Union government permanently identify and block such VPNs. There can be just no denying or disputing it!

It cannot be ever ignored nor should it ever be ignored that the Committee received several submissions about women complainants finding it difficult to lodge police complaints and suggested strict action against police officers and law enforcement personnel who refused to file such cases, or registered false cases. How can this be ever taken for granted or just glossed over? Strictest police accountability must be there on police so that this serious deficiency is addressed at the earliest! The panel also recognized that the government did not support the sanctity of sex work but highlighted the need to safeguard them from violence, protect their rights and provide them legal aid. Very rightly so!

It is a no-brainer that the first biggest step to help women is to make it easy for women to lodge FIR and for this she should not be made to the police station. There are good people in every department but their number too are now decreasing in every field which includes police also. It is widely reported also time and again that there are many policemen who either demand bribe or groundlessly refuse to lodge FIR or agrees to lodge FIR but on lesser serious IPC Sections and this is what urgently needs to be checked now and here!

To cite the most latest example is as reported in Hindustan Times dated March 12, 2021 in which the heading was “HUMILIATION BY COPS MAY HAVE FORCED RAPE SURVIVOR’S FATHER TO KILL SELF: KIN.” It was also written in this news that, “The father of a 13-yearr-old gang rape survivor who was killed after he was hit by a truck in Kanpur may have died by suicide due to police humiliation during the course of the probe, a release said on Thursday. The development came a day after the deceased’s brother, in an FIR, alleged that the incident was orchestrated by the accused – son of a local police officer and his friends. The relative, a cousin of the deceased, said the girl was repeatedly asked objectionable questions at the hospital when she was sent for medical examination. “Just imagine how one must have felt running from one hospital to another with police raising questions over the character of his daughter, that too in his presence,” the relative said. It was the manner in which the cops dealt with the case that perhaps drove the father to take his life, the relative said. “He was so frustrated with the police that he committed suicide,” he added. The family claimed that the questions were asked at health centres in two districts. The sub-inspectors and constables present on the spot did not care if their questions troubled the survivor’s father, he said. The teen was reportedly sent for medical examination five times across various medical centres. “Have you ever heard a rape survivor being examined so many times,” the girl’s uncle said.”

To sum up, all changes in laws are useless if the police are not reformed! It is a national tragedy that police reforms as were enunciated in Prakash Singh case in 2006 have not been implemented 15 years later in 2021! This is the real nub of the problem!

It merits no reiteration that policemen who err must be also severely punished as per law and held accountable for their serious wrongs as also lapses! Under no circumstances should they be let off by just suspending them for a brief period and then recalling them again once popular anger of people subsides! We keep seeing this time and again and therefore this must be redressed by our lawmakers!

Truth be told, the top panel must also suggest ways whereby a woman rape survivor is not made to run from pillar to post to get herself examined and to lodge an FIR plead as also her father and get harassed, humiliated and harangued for no fault of theirs thus thereby being punished doubly – first by criminals and then by police! This has to end once and for all if we truly want India to progress, prosper and become powerful in the real sense! No denying it!

Of course, Judges too must be very careful in ruling in such cases by adopting a zero tolerance approach and should ensure that victims always get full justice and never feel cheated in her fight for justice by letting off the victims lightly! Unless this happens, things are not going to change and status quo will either continue or things will deteriorate even further as criminals and sex offenders will become more and more emboldened after being let of  lightly! We all saw recently how a sex offender in Hathras mercilessly killed the father of girl victim after coming out of jail while he was working in his field and that too in her presence!

To put it mildly: Can our law makers allow this ever to keep happening repeatedly right under their nose as has been the case most unfortunately till now? Certainly not!  No doubt, the landmark, learned and laudable recommendations made by the top panel must certainly be implemented also promptly but other steps too need to be taken as hereinbefore discussed above so that no shortcoming or loophole is left unattended, unchecked and untreated! Very rightly so!

Sanjeev Sirohi

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