Three incidents occurred in the Indian capital city of Delhi recently, within days of each other, which involved complex questions on how the criminal justice system, particularly the regime to protect children from sexual offences, intersects with caste oppression. These incidents point to the problem of how laws designed to address sexual violence may fail to account for the persisting complexities of caste and as a result, fail to ensure complete justice.
The first incident is the gruesome gang rape and murder of a 9-year-old Dalit girl inside a crematorium, allegedly by four men, one of them a temple priest. The four accused are being investigated for rape, murder as well as offences under relevant sections of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Prevention of Atrocities against Scheduled Caste and Scheduled Tribes Act, 1989 (PoA). The second incident is where a Delhi sessions court acquitted a Dalit man of charges under POCSO, who had already spent 6 years in prison after the court found that he was falsely framed by the parents due to ‘prejudicial disposition’ owing to his caste. The court also awarded him compensation. In the third incident, a 13-year-old Dalit girl was raped and murdered by people who had employed her as a domestic worker. Other than sections of murder and criminal conspiracy, POCSO and PoA Act have also been invoked against the accused.
The three incidents diverge on the details but converge on the question of caste. The two incidents of sexual abuse of Dalit girls are symptomatic of the use of sexual violence as an instrument of caste oppression and the other exhibits how a stringent law like POCSO can be misused to inflict caste based oppression.
Sexual violence, caste oppression and POCSO
In 2020, a number of organisations and groups working on issues of caste oppression made a submission to the UN Special Rapporteur for violence against women on the issue of sexual violence perpetrated on Dalit women. The submission highlights that Dalit women find themselves at the receiving end of ‘triple fold violence, on the basis of caste, class and gender’ and the criminal justice system is unable to cope. The report claimed that as per NCRB data, there was a 49.87% increase in incidents of rape of Dalit women from 2015 to 2019 and it also noted that young Dalit girls may be subjected to sexual violence in educational institutions, in retaliation for family or property disputes, or on false pretext of marriage by upper caste men.
Specifically with respect to the criminal justice system, the submission notes how despite stringent laws like POCSO and PoA, Dalit women face many barriers in their quest for justice. The report highlights a series of key issues:
- Resistance and delays in filing First Information Reports (FIRs) where the complainants are Dalit women;
- Non-invocation by the police of stringent provisions of POCSO and PoA in FIRs to weaken the case and where invoked, removed later at the time of filing the chargesheet due to biased investigations;
- Counter claims are filed against families of Dalit survivors who often face threats and harassment from the accused as there are delays in arrest.
The issues noted in the UN submission are corroborated by a study of Special Courts established under POCSO carried out by the Centre for Child and the Law (CCL) at National Law School of India University, Bangalore. Published in 2018, the study looked at five states — Delhi, Assam, Maharashtra, Karnataka and Andhra Pradesh — and made several crucial findings:
- Despite facts revealing aggravated circumstances, the Special Courts do not frame charges under the more stringent provisions of POCSO. For instance, in Maharashtra, aggravated charges were not framed in 51.24 per cent of cases in which they were warranted.
- In the judgments studied, most survivors were from lower socio-economic sections of society and thus likely to be from Scheduled Caste and Scheduled Tribe communities. Yet charges were not framed under the PoA act. For instance, in Delhi and Assam, in all the judgments studied, in not even one case were charges framed under PoA act, possibly pointing to either a lack of awareness amongst the community about the Act or the deliberate non-invocation of these charges by police and courts.
Misuse of POCSO for caste oppression
POCSO is a stringent legislation ensuring that child sexual abuse is considered to be a grave menace to society that can have a long term negative impact on the child survivor and their families. The law reverses the burden of proof and in cases of sexual assault presumes that the accused is guilty unless contrary is proved (Sections 29 and 30). Because it provides for harsh punishments (even death penalty now, following an amendment in 2019), the law also provides for punishment (other than for the child) for anyone who makes a false complaint or gives false information against anyone under the more serious offences under the Act (Section 22). Yet, it is not uncommon to come across instances where false allegations under POCSO have been made in matters of property dispute, or matrimonial disputes for instance to prevent the father from getting custody of children etc.
In 2016, five Dalit children, all below 10 years of age and one of them a girl, were charged under POCSO following an incident of a minor scuffle with another group of children, who belonged to a dominant community in the Ulaipatti region of Madurai district in Tamil Nadu. The incident was criticized particularly for the silence from political leaders that followed, pointing to a tacit approval, and it was acknowledged that the incident signified growing caste fault lines. Later, a probe by the Child Welfare Committee revealed that the complaint was fabricated and the case was filed under pressure from a caste Hindu leader, following which the High Court directed booking all the persons who made false complaints.
Dr K Shanmugavelayutham, the convener of the Legal Resource Centre for Child Rights in Chennai, questioned the filing of the case against Dalit children under POCSO. He claimed that in Tamil Nadu, an FIR was filed in only one-tenth of cases of child sexual abuse. He argued that this could be a case of retaliation of caste Hindus against Dalits for filing complaints against them under the Protection of Civil Rights Act and can set a bad precedent encouraging other people to also start misusing POCSO for this purpose. In the Delhi sessions court judgment as well, as reported in the media, though it was argued before the court that the statements of the children were ‘natural version’ of the sexual assault, the court found it to be a ‘sinister act of tutoring the daughters’ by the parents. The court also observed that people level false accusations for myriad reasons and one of them could be ‘caste hatred’.
Inter-caste love and POCSO
Another intersection of caste with POCSO merits a brief discussion here. In July 2019, the Bill to amend POCSO to provide for greater punishment for offences came up for discussion in the Rajya Sabha. Abir Ranjan Biswas, Member of Parliament from the All India Trinamool Congress argued that POCSO is ‘often misused to cover up cases of elopement or inter-caste marriages.’ He also mentioned the suggestion by Madras High Court, reported in April 2019, that consensual sex with minor girls above the age of 16 years be excluded from the purview of POCSO. That suggestion was hailed by many who also pointed to possibilities of misuse of POCSO to ‘prevent inter-caste marriages.’ Though consensual sex between and with minors raises multifarious legal issues which are not explored here, it is important to be aware of the possibility of how inter-caste love may become an unintended victim of POCSO.
Complex questions of caste intersecting with POCSO
The discussions, observations, and cases presented above raise complex questions on how the law interacts with social realities. In letter, the law offers seemingly equal protection to survivors of child sexual abuse irrespective of their caste, but in practice, Dalit women may face undue harassment and difficulties in trying to secure justice. POCSO provides protection against false complaints, but that has not prevented misuse of the law as an instrument of caste oppression. POCSO was not intended as retribution for inter-caste love but the grave possibility of that happening also exists. In all the cases shared in this article, the actual purpose of POCSO is defeated if the result is not justice for the survivor.
This calls for comprehensive research, to begin with, particularly to understand the extent and manner in which caste interplays with POCSO. But it also calls for greater awareness of these intersectionalities among the stakeholders in the process – police, prosecution, courts and the many civil society organisations working to ensure justice delivery through POCSO. Greater sensitivity to the possibilities of caste oppression despite and through a stringent and well meaning law like POCSO may help the stakeholders mitigate such damage.