Rape survivors seeking justice under the Protection of Children from Sexual Offences (POCSO) Act are widely being questioned and cross-examined in courts across the State in violation of the protection the law guarantees them.
Instances of girls, who suffer indescribable trauma from sexual offences during their school years, breaking down in courts are on the increase.
Although the POCSO Act has totally incorporated the Supreme Court guidelines to be followed in cases of minor rape survivors—that they should not be asked questions directly or cross-examined either by the prosecutor or by the defence counsel—very few POCSO courts are strictly following them.
The number of convictions in POCSO cases has dwindled considerably in recent years. Legal experts point out that the leverage granted by the judicial officers to defence counsellors and prosecutors in courts in cross-examining the POCSO survivors has contributed to the plummeting conviction rate in the State.
“It is a shame on a highly literate State like Kerala that our POCSO conviction rate is less than 4%,” said P.E. Usha, social activist and former director of the Mahila Samakhya Society. It is true that several other factors, including settlement and threats, were also leading to the flagging conviction rate, she said.
A 17-year-old rape survivor had broken down in a POCSO court here a couple of weeks ago after she was allegedly coerced by the public prosecutor to testify in such a way as to help the accused, who was closely known to the prosecutor.
“We do not have a proper survivor support system here, though the POCSO Act guarantees 100% protection for the child. When the protection guaranteed to the victim is violated, delivery of justice is often eluding,” said Deputy Director of Prosecutions P. Premnath.
According to Mr. Premnath, many officers in the legal fraternity are either unaware of the significance of the protection guaranteed to the survivors or unwittingly cross the boundaries of restrictions. He said Sections 33 and 36 of the POCSO Act incorporated the guidelines formulated by the Supreme Court in the wake of the famous Sakshi vs Union of India case.
Ms. Usha, who dealt with dozens of POCSO cases on behalf of the survivors from age five to 17, said she had seen many girls being confounded by the defence counsels with their befuddling questions. “How do you expect a child to remember and tell every traumatising detail in court, especially often under severe duress because of several factors?” she asked.
Recounting her experiences, Ms. Usha said that rarely did the judges stop the defence counsels when they posed insinuating and misleading questions towards the minor survivors. “Prosecutors hardly intervene when defence counsels grill the girls,” she said.
Pious Mathew, former POCSO special prosecutor and lawyer with 32 years of experience, said the law upheld the rights of the defence counsel too even when protecting the interests of the minor survivor. “The defence counsel and prosecutor can ask the judge the questions for which answers are needed from the child. As cases are sexual offences, questions too will reflect them,” said Mr. Mathew.
According to defence counsels, quizzing the survivors is imperative because there is a 15 to 20% chance in the POCSO cases being fabricated.
Hence handling the case in court is quite a walk on razor’s edge and has to be done diligently even while being extremely empathetic to the little souls scarred by the trauma of sexual assault.
