Justice for abused children: Fasttrack courts and following rules

 

Going by media reports, it appears as if there is a sudden spurt of crime against women and children, in the garden city known for peace. However, according to the data, it shows that the crime against women and children always existed, in all parts of the state and the country.

It is not true that Vibgyor is the only school that such a ghastly incident took place. There are other schools in which such incidents happened, but escaped media limelight. The bottomline is, crime against children in the city always existed, to which we as a society chose to turn a blind eye.

As many as 34 child rape cases were reported in Bangalore in 2013, according to National Crime Record Bureau data for 2013  (Page 406). This is only what was reported to police on which police took action, but actual figure might be more, as we as a society, lack clear directions on what should be done in such situations.

Reasons for not reporting the crime by schools are many. Some of them are:

  1. Not being aware of the implications of not reporting it.
  2. Fear of losing credibility, that too in a business like education, when there is negative publicity.
  3. Not knowing what to do, in such situations
  4. Thinking that the school can claim that it is not responsible to child’s safety, because most schools take an undertaking regarding child’s safety from its parents.

In case of Vibgyor school, the management denied the incident ever took place in the school. However, police have concluded that the school had the knowledge of the incident. The chairman of the school was arrested for not reporting rape and destruction of evidence.

Arrests in any case do not mean the arrested have already been proven guilty. The police are not above errors of omission or commission. Until there are convictions in a judicial process, the suspects are innocent until proven otherwise. This is still a very early stage of the investigation process. However several larger questions have come to fore because of parental fury and media focus on this incident.

The question that ponders most parents is: who is responsible for my child’s safety during school hours, within school premises? How is a school answerable in this case? Does the law mandate that school be held responsible? What is the state government’s role in monitoring and controlling private schools which do not have state syllabus?

Loopholes in Education Department

Meena Jain, former chairman of Child Welfare Committee (CWC), has served in the committee for two terms. She says, “This is definitely not the first such case in Bangalore, there have been many such incidents in the past. CWC has already given a set of guidelines to the Department of Education on preventive and post-mishap measures to be implemented in all the schools, but Education Department has done nothing to enforce it.”

CWC is established under Juvenile Justice (Care and Protection of Children) Act 2000 (amended in 2006) in every district. It is empowered with the same judicial powers as a metropolitan magistrate or a judicial magistrate of the first class. It looks after the cases related to child rights violation, and seeks justice to the child with all necessary care and attention that it needs.

“There are loopholes in the the Education Department. The staff do not have clear idea about their duties and responsibility,” says Meena. According to her, in the present legal situation, the Block Education Officer is responsible to ensure that the rules and guidelines prescribed by the law are adhered to by all the schools. But Meena quips: “Ask us how many times a BEO has come forward to do a follow up with a case!”

Private schools fail to comply many rules

On the other hand, Ramesh, BEO of K R Puram has his own concern over schools that are run under private management. He admits that under section 4 of the Right to Education (RTE) act 2008, BEO does have jurisdiction on all the state-run schools, ICSE and CBSE board schools, except the minority schools. “Our intervention in private schools depends upon the management of the school,” he says.

Nagasimha G Rao, Director of Child Rights Trust and Convenor of RTE Task Force, has worked in education field for quite some time now. He criticises that most private schools are money-minded. “They fail to follow the democratic principle of running a school and violate the law of the land,” he says, adding that Article 17 of RTE has banned corporal punishment or isolation in the schools, but the Vibgyor school case saw this happen.

Nagasimha lashes out at private schools like Vibgyor school which ban formation of Parents Teachers Association (PTA), which is sheer violation of Article 21 of RTE that mandates all schools to have such a monitoring committee in the school. RTE Task force has mandated all schools to display a childline number 1098 in their school, so that in case of any violence, the child or the parent can contact them and they can take the necessary actions. “Not many schools follow this simple provision also,” says Nagasimha.

Meena Jain, ex-chairman of CWC says, “Government should intervene in matters where public safety is concerned. Strict laws and defined mechanism to ensure child safety is must. It must not only draft rules, it should do a follow up and ask the authorities to submit a compliance reports annually to ensure that the monitoring is being done.”

Nagasimha says that  parents must value their child over money  and not to keep silent when the child’s basic rights are suppressed.

Schools responsible for safety

Vibgyor school had taken an undertaking from parents that said the school would not be responsible for any untoward incident that happens to the child. This made many parents wonder what to do in such situations.

However, under existing laws, the school could be held criminally liable for “abetting” this crime if it is proved that they treated the child after the incident and hushed it up. Adds Nagasimha, “The declaration forms has no legal back up, but it successfully kept the parents quiet…”

Dr. Shaibya Saldanha, a Bangalore-based psychiatrist and gynaecologist, who is also co-founder of the NGO Enfold working on issues related to child sex abuse, believes that such declarations have to be judged according to the merits of the case. For example, if a child hurts himself or if petty fights turn out to be fatal, one cannot blame the school, she says. “But rape is different. They can’t use an agreement such as this as a blanket to absolve them of all responsibilities.”

Police can file suo motu case

As we have already explained in our previous article, it is the responsibility of the employees and owners of any institute to report the incidents of child sexual abuse, under 19 (1) of the Prevention Of Children from Sexual Offences act (POCSO) 2012.

An expert on laws related to Child Sexual Abuse, advocate Ashok G V says that the child sexual abuse is cognizable (serious) in nature. This means police need not wait for a complaint to be lodged, they can take action on their own when they come to know about any such incident. Except section 21 and 22, all other sections are cognizable in nature.

The act mandates anyone who is having knowledge about the incidence to report it to the Special Police Unit. Failure to do so would attract an imprisonment which may extend to six months or with fine or with both, under section 21 (2) of the act.

The Section 5, 6, 9 and 10 of the POCSO act cater to different forms of sexual abuse, including penetrative and non-penetrative assaults, sexual harassment and pornography, and considers a sexual assault to be “aggravated” under certain circumstances, such as 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.

Maximum punishment of not less than 10 years and fine is given under this law under section 6 for aggravated penetrative offence done over child by any personnel within their institution. For example, a police officer abusing a child within police station or near police station, any personnel from educational institute or religious institutions committing penetrative sexual assault on child within that institution can be arrested under this section..

Law clearly states that the first duty of the school is to inform the Special Juvenile Police Officers about it. Dr. Shaibya says every school must have a counsellor who can deal with the child affected in such cases. “Once it is established that the child has been sexually abused by a close person, a counsellor should be made available to the child to talk to her or him. The issue should not be stigmatised, like it has happened in this case.”

How should the child be treated?

POSCO act is extremely child-centric and sensitive. According to this, the police officers cannot come in front of the child in uniform. The child is never taken to the police station. Instead police officers are supposed to meet the child in a surrounding that he or she is comfortable with.  

POCSO act emphasises on forensic interviews that aim to know the medical history and the immediate information of the abuse that the child went through. The interview can be done by professionals or counsellors who understand the child’s psychology or police. The place of interview is never the police station but a place where the child is comfortable.

Dr. Shaibyan says, “In the first sitting itself, all the information should be retrieved. According to the child’s age and psychology, a counsellor should be appointed who will seek all the answers to the questions. Medical certificate should be issued immediately. And no further questions should be asked to the child.” Once the investigation is over, the child is summoned for an identification parade.”

When the case gets first registered with the police, within 24 hours police is mandated to report the case to Child Welfare Committee (CWC) who shall immediately meet the child and decide whether the child needs to be rescued or whether it needs special investigation. However, in the Vibgyor rape case, this procedure was not followed. CWC members have taken suo motu action on the matter. Not many are aware about the existence of the CWC who has been constituted under the Juvenile Justice Act 2000 to safeguard the child’s safety.

Can school be held for the lapse of security?

CSA expert Ashok G V says: “Under the tenets of tort law, a system that India follows in theory, any act that may be considered to bring injury/harm to an individual by others is actionable.” Tort laws are laws that offer remedies to individuals harmed by the unreasonable actions of others, and involve state laws.

That means an educational institution or any other institution can be held liable for negligence that has resulted in personal harm or injury to individuals in its custody. In countries where tort law is very strong, this would be used in civil proceedings and can result in heavy damages for the party.

However, in India, there is no significant precedence where the institution or authority has been held liable. Ashok says that easier forum for initiating a claim against an institution for negligence would be the bodies established under the Consumer Protection Act.

Need for a database on pedophiles

Pedophilia is a mental disorder among the adolescent who is attracted towards prepubescent children, generally aged 11 years or younger.

Laws in other countries like UK are very strict against the pedophilia. Such people are barred from going near the schools. Nagasimha says India should have a data base at least for the schools to easily identify the criminals and to keep the offenders away.

The police did not say that the accused suffered is a pediophile, but he was found in possession of collection of videos on pornography and rape on school children. During the course of investigation, police came to know that he was fired by his previous employer, Deens Academy, Whitefield for touching students in an inappropriate manner.

An email from the principal of the Academy to parents, shortly after the arrest of Mustafa confirmed this:
The School has some stringent policies, especially for the male staff, with regard to physical proximity with children while they undertake their tasks (touching/supporting physically). After repeated warnings by way of counselling and memos, when it was found that Mustafa continued to touch girls while he guided them through their sporting activity, his services were terminated forthwith.”

However, the Deens Academy didn’t complain about it because, “there was no culpable incident whatsoever that required Deens to report him to the police,” according to an email written by Shanti Menon, Principal of Deens Academy, to parents of students in her school.

When there is no complaint on a person, the police database cannot contain the offender’s name. That is how this case fell into cracks in between Deens Academy and Vibgyor High school. Had the Deens Academy reported the specific incidents to Police, there would have been inquiries and the person would have been in the police databank.

Indian law upholds the theory – ‘innocent until proven guilty.’ Dr. Shaibya says: “To have such data we need to convict people. The conviction rate is much lower than the incidences of rape cases that are being reported! Matters go on and on in the courts, and after sometime the person gets bail and there is no one accused.”

Hence, to ensure pedophiles are entered in the police register, a complaint by the school or others is required, which ensures that the culprit can’t get away with the crime, and cannot dare to try the same in future.

Need for functional fast-track courts

According to National Crime Record Bureau Crimes 2013, in Karnataka 270 children rape cases were reported out which 34 cases were reported in Bangalore alone. At the beginning of the year 2013, 2047 rape cases of Karnataka were pending in the court of law out of which 29 were convicted. There was no record in NCRB on the number of Bangalore  rape cases that were convicted.

When asked why there is no conviction, the immediate reason given is lack of courts and adequate staff in the Judiciary. For the entire city of Bangalore, there is only one fast track children’s court set up. The court is located within the premises of the civil court. It is not entirely dedicated to children’s cases – it hears other civil matters too.

In 2013, following the criticism from a child rights activist against the location of the court which according to them was not conducive for children and against the POCSO act, it was decided to relocate the court. Later nothing happened, and the court continues to function in civil court only.

Nagasimha says that when he enquired on the functioning of the court, he got to know that the court only sits when the cases related to children arise. However he claimed that everyday there were cases reported to Child Rights Trust regarding child safety.

Now the government is again talking about more fast track courts, one has to wait and see whether they will materialise or not.

Cases disposed by Court on crime against children in Karnataka

Total no of persons under trial including previous years

Tot. no of persons whose trials are completed

Trial remained pending at the end of the year

No of person convicted

2047

331

1716

29

 
 

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About Nikita Malusare 109 Articles
Nikita Malusare is a Staff Journalist at Citizen Matters.

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