Legal and child rights experts say trial in the case of gruesome gang-rape and murder of an eight-year-old girl in Kathua could have been fast and its politicisation avoided had Jammu and Kashmir enacted POSCO, a stringent law for punishing sexual offenses against a child.
Every state in India enacted the Protection of Children from Sexual offences Act (POSCO) following the Government of India in 2012, but J&K is yet to formulate a similar law for the state for protection of children from offenses the Kathua child was so brutally subjected to in January.
“This law is very stringent. Under this if a police official commits a crime in an area where he is known, he will be imprisoned for life. So the police official involved in Kathua rape could be easily booked and charged under this act,” Mushtaq Ahmad Dar, Vice President Jammu and Kashmir High Court Bar Association, told Greater Kashmir.
According to Dar, POSCO provides for treating abettor of a sexual crime against a child equally stringently as the main offender on a fast trial basis.
“A maximum 30 days time is given, according to the Act, for recording the statement of the victim, if the victim has died still the Act calls for speedy trial,” Dar said.
Police Responsibility
He says the state’s reluctance for enacting POSCO here comes from responsibilities this law places on police while dealing with juvenile detainees under its custody.
“If a child below the age of 18 is kept in (Police) custody and is being beaten or kept naked they will be held accountable under this Act.”
Experts say the absence of a law like POSCO in J&K makes it difficult for the judiciary in the state to deal with persons accused of sexual offenses against children.
“If POSCO would have been enacted in J&K, then the culprits, involved in 8-year-old’s rape and murder, would have been punished according to the Act. Kashmir is a disturbed state, and there is possibility of sexual violence so there is a dire need of POSCO here,” said Shareef Bhat of Save the Children.
Speaking on condition of anonymity, an official in the state government said, “The social welfare department has to enact this law; they don’t have to ask anyone to enact it, for it is the nodal department.”
For any kind of legislation the nodal department drafts a bill which is sent to the law department, and after careful analysis and implications of the draft law, it is sent to the finance department and then to the general administrative department before finally to legislature for final approval.
“The point is, it all starts from the nodal department,” the official said.
Observers say the horrifying detail of the gang-rape and murder of a Bakerwal girl contained in the charge-sheet against the eight accused, and demands for a speedy trial makes evident the need for a law like POSCO in the state.
According to a child rights expert, “POSCO would have made a huge difference in the Kathua case had it been enacted in the state.”
“First of all the charge-sheet would not have been filed before the chief judicial magistrate. There would have been a separate court, a children’s court and the case would have been heard there on fast track basis.”
It took police three months to file charge-sheet, but under POSCO it would have been filed within weeks and the issue would not have been politicised this much,” the expert said.
Some states in India who have adopted POSCO have also introduced death penality for the offender under this law.
“We could also do it once the act would be enacted.”
Another child rights expert, Enakshi Ganguly, Co-Director of Delhi-based HAQ: Centre for Child Rights, also expressed anguish at the politicisation of the crime in Kathua.
POCSO aims at providing protection to children (individuals below the age of 18) from sexual violence including sexual assault, sexual harassment, and the inclusion of children in pornography and provides for establishment of special courts for trials of such offenders and for matters connected therewith or incidental thereto.
The law also lays down punishment for offenders of penetrative sexual assault and aggravated penetrative sexual assault and provides for punishment up to rigorous imprisonment for life, and a fine.
The law also contains detailed guidelines on how to report a case of child sexual abuse as well as on how the victim needs to be cared for and protected by Special Juvenile Police Unit or local police.
Above all, the law also calls for the designation of special courts to put offenders on trial.
“We are planning of extending POSCO to Jammu and Kashmir. We are planning to have much more stringent law for sexual offender. If there would be a need to make changes in POSCO and make it more stringent we will do it,” Minister for Social Welfare Department, Sajad Gani Lone, said speaking in English.