On March 24, BJP MP Subramanian Swamy moved a Private Member’s Bill in the Rajya Sabha to amend the Protection of Child from Sexual Offences (POCSO) Act. The amendment aims at omitting Section 19, which makes the reporting of child sexual abuse (CSA) mandatory for anyone who has an apprehension of such an act being committed or has any knowledge of such a case.
This includes NGOs, friends, educators, health professionals or neighbours whom the victim, or their parent might have, confided in - and also judges, especially in family court, who come to know of such cases while hearing other disputes, including divorce petitions.
Swamy’s Bill focuses on the last - as he says the provision is being used against judges.
The statement of object and reasons of the Bill reads:
QUOTE: “Section 19 of the Protection of Children from Sexual Offences Act, 2012 compels even Court Judges, hearing a divorce case or in marriage discord cases to provide information to police authorities or otherwise face penal punishment under section 21 of the said Act. This places an unacceptable onus on the public and public Judicial persons on their mere apprehension of a possible offence being committed.”
But is perceived harassment of the judiciary reason enough for the entire section to be removed from the Act?
People working with CSA victims believe that while Section 19 is vaguely worded and lacks nuance. And while they subscribe to Subramanian Swamy’s larger point, they say that his reasons are too narrow.
Vidya Reddy of Tulir, a Chennai-based NGO working against CSA, says that Swamy’s argument against mandatory reporting is very singular if only judges are being considered the sole stakeholders.
“Speaking from an NGO’s point of view, when people approach us to seek help and discuss issues, I am mandated by law to report it. What if a family or child doesn’t want to pursue it legally right away? They will be able to access no support whatsoever,” she says.
Kushi, who works with Bengaluru-based NGO Enfold, says that asking to eliminate Section 19 in entirety makes little sense. “One of the main objectives of POCSO was to encourage reporting of CSA. If the whole section is scrapped, what’s the point?” she questions.
She suggests that a better way to go about it would be to provide for people who can be exempt from mandatory reporting.
“What if a child who is going to see a mental health professional and tells them that he/she has been sexually abused? He/she also says that if the professional reports it, he/she will harm themselves. In this case, is reporting CSA in best interest of the child?” Kushi asks, as she explains the different scenarios in which mandatory reporting may not be the best solution.
Another scenario could be where the abuse has happened a few years ago, says Kushi. If there is little evidence to support the claim now, does it make sense to report it?
“If judges start convicting people based on testimonies alone, without evidence to corroborate it, the law loses its significance,” Kushi says.
Swagata Raha, Senior Research Associate (consultant) at Center for Child and the Law at NLU, Bengaluru, says that while Swamy said that he was aware of at least 27 such cases, she is not aware of judges being harassed using Section 19.
“And where it happens it would be rare,” Swagata says. She reiterates that the medical fraternity on the other hand has voiced concerns about the mandatory reporting clause and they should be taken into account. “People won’t come to them seeking help if they know it’s going to be reported,” she says.
A person working closely with CSA victims who chose to remain unnamed also said that it does not make sense for judges to be exempted from reporting CSA.
“As per the example given by Swamy, if one spouse is alleging that the other has abused their child, it is on record. If this is not reported or investigated, it can also not be used as grounds for granting a divorce. Further, exempting judges from reporting CSA allegations implies that someone can make such a serious allegation against someone and get away with it,” the person says.
Another problem with Section 19, in its current form, is that it does not take into account consent and adolescents’ sexual expression, says Swagata. “So for instance, if two 16-year-olds choose to engage with each other sexually and someone is aware of it, they are bound to report it under POCSO. This is problematic and can end up victimising the adolescents,” she argues.
Vidya says, reportage of CSA needs an enabling system rather than a mandate. “Ideally, if a person wants to report CSA, they should be able to without a hassle. But it should be done in consultation with and consideration of the best interests of the main complainant - the child,” she says.
Interestingly, a study done by Arpan, a Mumbai-based NGO working against CSA, found that a majority of the respondents it interviewed were against mandatory reporting. Arpan interviewed 64 adults who had been CSA victims. Of these only 34.5% were in favour of mandatory reporting.
40 participants opposed mandatory reporting, citing "their social environments as being “patriarchal”, “misogynistic” or “insensitive” and were wary of the stigma.
Swagata says that we also need to look at systems which prioritise protection over criminal action.
Vidya recounts a case which proves Swagata’s point - a school teacher had allegedly abused many boys and the incident came to light when one of the boys reported it. The school immediately asked the students who went to the teacher’s tuition classes. It was found that they had been abused too.
The school called the families of all the children involved and told them that they were mandated by law to report it, but asked the families if they would be okay with it.
All the families responded by saying that they wanted action to be taken against the teacher but did not want a police complaint. So, the school fired the teacher and issued notices saying that no child should be sent to his tuition classes. Vidya says that the school behaved in a model way, going the extra mile to ensure the wellbeing of the children involved rather than just filing a complaint.
“There is a lack of faith in the system which needs to be taken into account. Mandatory reporting need not be scrapped entirely, but in its current, vaguely worded form, it does not serve the best interests of the child,” Vidya says.