Justice System’s Failure of India’s Children

TW: Rape; Paedophilia.

In this post, I touch on sensitive topics that may trigger an emotional reaction. It was certainly difficult for me to write on this but this is a topic that needs our attention and emotions. I specifically discuss a case that impacted my understanding of this issue and compelled me to write this blog post.

India has a rape problem, more specifically India has a problem of sexual assault against children. In 2019 alone, the NCRB reported 198 cases of Murder with Rape/POCSO and 7523 cases of rape against children. It is worth noting here that a high amount of sexual assault cases against children are never reported and the perpetrators are often known to the victim.

The Section 4 of POCSO, 2012 gives minimum imprisonment  for seven years for penetrative sexual assault of a child. A child is defined as any person below the age of eighteen years under Section 2(d) of the Act. According to NCRB, the Act has resulted in increased reporting.

Sexual abuse in children leaves tremendous trauma. It has profound consequence on their development. It has been linked with poor social, mental and physical health outcomes throughout life. This includes higher risk for suicidal behaviour, depression and other temperamental problems. Further, there is also risk of victims of childhood sexual abuse perpetuating the same as adults.

In T.K. Gopal v State of Karnataka, the victim was an infant child of one and half year. The victim’s mother was a maid-servant who also worked as a mason-labourer under the appellant. The appellant and his colleagues used to have lunch at her house. On the day of the rape, appellant indicated he would take rest for a while. The victim’s mother went to prepare rice for idlis. She returned home to find appellant lying over her infant daughter, who was bleeding from her private parts and lips.

A case was registered against the appellant under Section 376 IPC. The appellant was tried and ultimately convicted and sentenced for ten years. The maximum punishment under Section 376 IPC is life imprisonment. The trial court did not award maximum punishment in this case.

The appellant argued that there is reformation in the mind of accused and also that there are dependents depending upon the appellant. He has a wife and two daughters who were financially dependent on him. The Supreme Court noted this and chose not to increase his punishment, commenting that “he should not be made to further suffer the consequences of his bestiality.”

I personally disagree with the assessment that there can be reformation in mind of someone who commits such heinous crimes. In order to understand if there can be reformation, we must first answer what drives rape? There are multiple theories on this. It may be driven by opportunity(lone female in a dark alley?), anger, sexual fantasy, sadism etc.

In Bodhisattwa Gautam v. Subhra Chakraborty, the Court said that “Rape is thus not only a crime against the person of a women (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer will-power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women. The rape laws do not unfortunately, take care of the social aspect of the matter and are inept in many respects.”

In the above case, was it opportunity? An hour alone with an helpless infant who can’t fight back does fit the definition. I am not an expert on psyche of a child rapist so I will stop discerning his motivation.

My aim with this blog is to encourage a dialogue on this pervasive issue. I am looking forward to your comments on this post.

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