Recently, I came across a Tweet that unsettled me. I live in a country where child marriage had been the norm for centuries. Even after its abolishment, the practice is still carried out in in a lot of cities. Hence, the enforcement of the Protection of Children from Sexual Offences Act, 2012, came as quite a welcome relief. However, its effect has been significantly curtailed by a major legislative blunder that could very easily have been foreseen. This is what that tweet had pointed out. This is what I am going to be addressing today. Why? Because can anyway actually even begin to question why children need to be protected from any harm at all costs?
I will try to explain the situation in the simplest possible terms, however, being a lawyer I might get slightly technical at places. Please bear with me, I assure you it will all make sense if you continue reading. I actually implore you to read because the importance of this topic of discussion cannot possibly be overstated.
So, here it goes –
This Act was passed in 2012. To make access to legal recourse possible to all victims, this particular legislation has been kept free from the shackles of the Statute of Limitation. A limitation, for lack of a better illustration, is like a warranty period of sorts. If you are aggrieved by a particular action of another, you are required to file a complaint about it within the prescribed time for doing so, i.e., within the limitation period. Beyond this time period, the doors of legal recourse will be forever shut for you with regard to that particular action.
Now, do not fret. I assure you such a limitation makes sense at most times in order to prevent malicious and frivolous complaints from being filed. Thus, in cases of extreme gravity, like the one under discussion today, such prescription is done away. This means that a victim of childhood sexual abuse can file a complaint about the offence at any given point of time in his life and he shall not be denied access to justice. Makes sense, right? After all, the very nature of the offence is such that immediate filing of complaint about it is very near impossible since the victims are small children who might not even know what they were being subjected to.
Here’s the catch!
Our esteemed legislators, yes, the very members who we’ve chosen and elected to be our representatives, forgot to provide a retrospective effect to the Act. This means, for any sexual offence perpetrated against a child before the passing of the Act, i.e., before 2012, no complaint can be filed under the provisions for this Act.
So, if any one has suffered childhood sexual abuse for a period as early as just about 5 years ago, our legislation has only one thing to say – tough luck, kid!
Considering the backdrop of such offences, this lack in legislative foresight becomes even graver. It cannot be forgotten that majority of sexual abuse against children are perpetrated by relatives or close friends of the family. They are, essentially, the people that a child trusts implicitly without any question. Hence, the child would not realize what was happening or even why. He or she might get accustomed to it and think that it was something normal since they do not know better. Or, even worse, he or she might understand what was happening, but may not be able to speak out to, say his mom, about why his Uncle visits his bed at night. Now consider this situation in light of the fact that children are acutely aware that anything they say to an adult will never be taken seriously. Hence, they will not speak out.
It might take years before a child realizes, understands and gathers the courage to disclose what was done to him. How can we, in good conscience, or in any sort of conscience, tell these victims that despite everything, they will still not get justice? That maybe if they’d been born later and had this done to them later, they would have had a chance?
At what level is any of this right?
I thought about this a lot. And I thought hard. Then I saw a small sliver of hope. I remembered that the Indian Penal Code, at least for the purposes of all offences defined therein, considers a female of any age to fall under the definition of ‘woman’. So we can at least still get justice for a girl child? Well, I thought wrong.
The definition of Rape got its present, expanded and inclusive definition by way of amendments made in 2013, in the aftermath of the Nirbhaya Gang Rape, an incident that shook the entire nation. But hey! Guess what? Yes! They forgot to grant a retrospective effect in this case too.
So, if you’ve been raped in a way that is currently defined as rape (and always should have been, because let’s face it, how difficult is it to understand?) before 2013, then ladies and little girls, I am very sorry to say our country’s legislation has failed you.
If you are an adult, looking back at a dark crime in your childhood, I am so extremely sorry. The Legislators have washed their hands off of your pain and trouble. They shalt not Meddle with it at all, it’s only your problem, as far as they’re concerned.
The crux of the matter is, if these complaints could have been filed and reached the Courts, they would have faced the question of “why the delay?” which may or may not have been explained satisfactorily by the victim. However, as the legal situation stands today, they will not even be allowed to be registered as a complaint in the first place.
End of story? I wish.
This was the legislation and the legislators. Let me now tell you about the judiciary.
I still remember how, in five years of law school, there was this one lecture in criminal law that sent my crying back to the hostel. Our Professor had discussed a case wherein a man had sexually abused a child. A man. Sexually abused. A child. A SEVEN AND A HALF MONTHS OLD CHILD. He would have succeeded in actually raping her if the child’s mother had not entered the room at the end moment. A case for outraging the modesty of a woman was brought against him.
As per the law, this offence is defined as the use of criminal force to a woman with the intention of outraging her modesty. While the first two parts of this definition were a matter of record and not disputable, the High Court decided to interpret what outraging the modesty of a woman would mean.
Two out of three judges forgot all about the “intention” part and. Let me tell you, the main thing that actually differentiates a criminal act from a non-criminal act is “intention” known as mens rea, which can be translated to mean ‘a guilty mind’. Yet, the two judges very conveniently forgot about the intention of a man that forced himself on a child. They propounded that “modesty is writ large on a woman’s body”. Hence, they reasoned that a woman’s modesty can be outraged only when she felt it being outraged. Her reaction is what would make the offence and not the action or intention of the perpetrator. So, since the child was of too tender an age and was physically incapable of understanding that her modesty was being outraged, ergo, it wasn’t outraged. Here, I would like to tell you that that man managed to rupture they child’s hymen and inflicted a gash 3/4th of an inch long in her vagina.
Yet, the judges did not find the offence to be made out. In doing so, the judges, effectively, clubbed all female children, mentally disabled women, intoxicated or inebriated woman and even drugged women into a category where their modesty could not be outraged because they would not be able to feel it happening or understand it to be happening to them.
Are you sufficiently outraged by now?
I know I have been since that day. I am even more now.
Thankfully, the Hon’ble Supreme Court overruled this highly erroneous decision. Yet, there may have been thousands of similar cases that may not have reached the Supreme Court.
So, this is the face of the legislation and the judiciary when it comes to the question of justice for our children and for our women. I could quote many more cases, but that list would be endless. Yes, in some cases, justice indeed has prevailed, but they form only a minuscule fraction.
So today, I implore you to take care of children. All children around you. I know parents need not be told this, yet there’s always something more that you can do to protect your children.
Imagine the plight of that mother who walked into her child’s room to find a man committing such a heinous act. Imagine what she must have gone through. Imagine the pain of that little, little, child. Imagine how she must have grown up in this society which might forget a criminal but will never let a victim forget what happened to her. She would have been labelled as impure, broken, damaged and shunned for something she did not even remember. They would never let her forget. They would never let her live. The would, in all probability, shun her.
So, yes, I implore you to protect your children better. Keep a keener lookout for any sudden behavioural changes in your child. When giving them a bath, tell them how to clean themselves, refuse to touch their private parts, gently remind them everyday that no one except for them are supposed to touch them there. Make your children better prepared to identify what’s the right kind of touch and what isn’t.
Just, protect them, will you?
I apologize for the long rant today, but I hope you would agree with me that this had to be done.
To read my previous post against child labour, read Little Fingers, Tiny Toes.