PM IAS JAN 20 EDITORIAL

Judging a decade of the POCSO Act

Context:

• Ten years have passed since the Protection of Children from Sexual Offences (POCSO) Act, 2012, enacted in consequence to India’s ratification of the UN Convention on the Rights of the Child in 1992, came into effect on November 14, 2012.

About POCSO Act:

• The aim of this special law is to address offences of sexual exploitation and sexual abuse of children, which were either not specifically defined or in adequately penalised.
• Amidst the debate on the poor conviction rate under POCSO and a lowering of the age of consent from 18 years to 16 years (though rejected by the Central government), it is worth evaluating its impact on the ground.

1. A significant feature of the POCSO Act is its gender-neutral nature. Even though the National Crime Records Bureau (NCRB) has not published data on male and female victims separately, in Chhattisgarh, male child victims accounted for about eight in every 1,000 POCSO cases (0.8%). Though the reported number is not big, it still endorses society’s apprehension that the sexual exploitation of male children is also a serious issue that has been largely unreported.
2. There is sufficient general awareness now to report cases of sexual exploitation of children not only by individuals but also by institutions as non-reporting has been made a specific offence under the POCSO Act. This has made it comparatively difficult to hide offences against children.
3. The storage of child pornography material has been made a new offence. Further, the offence of ‘sexual assault’ has been defined in explicit terms (with increased minimum punishment) unlike an abstract definition of ‘outraging modesty of a woman’ in the Indian Penal Code.

No change in investigation

• However, a large part of the investigation of offences under the Act is still guided by the Code of Criminal Procedure (CrPC). The investigation of penetrative sexual assault cases generally involves recording the statement of the prosecutrix, a medical and forensic science laboratory (FSL) examination, and determination of the child’s age.
• The POCSO Act provides for recording the statement of the affected child by a woman sub-inspector at the child’s residence or place of choice. But it is practically impossible to comply with this provision when the number of women in the police force is just 10%, and many police stations hardly have women staff.
• In 2015, the Ministry of Home Affairs (MHA) introduced a scheme to create an Investigation Unit on Crime Against Women (IUCAW) which was to be made up of 15 police officers (with at least one-third comprising women officers and headed by an additional superintendent of police) in each district.
• Its aim was to ensure quality investigation of crimes against women on a 50:50 expenditure sharing basis; the response by States to the scheme has been half-hearted. Similarly, despite funds being provided by the Centre to strengthen mahila desks, many police stations still do not have even a single woman staff.
• Similarly, though there is a provision to record statements using audio-video means, and a Supreme Court judgement, Shafhi Mohammad vs The State of Himachal Pradesh (2018), on capturing and preserving the scene of crime of heinous offences using audio-video means (followed by standardisation of technical specifications by the Bureau of Police Research and Development or BPRD for uniformity), the pilot project has yet to be implemented across States.
• In the absence of proper infrastructure to ensure the integrity of electronic evidence, the admissibility of evidence recorded using any audio-video means will always remain a challenge.
• Another provision mandates the recording of the statement of the prosecutrix by a judicial magistrate. Though such statements are recorded in most cases, judicial magistrates are neither called for cross-examination during trial nor are those who retract their statement punished. In such a scenario, such statements get nullified.
• Second, medical examination of the prosecutrix is conducted according to provisions of the CrPC. However, the medical examination of a girl child is conducted by a female doctor (as specified in the POCSO Act). Even so, and as observed by the Supreme Court of India, there are instances where the banned two-finger test is still in use.
• Further, there have been no attempts to upgrade the FSLs in States to expedite the examination of exhibits. The fact is that many cases have a charge sheet without an accompanying FSL report, which is then decided by courts.

Issue of age determination

• Third, though age determination of a juvenile delinquent is guided by the Juvenile Justice (Care and Protection of Children) Act, no such provision exists under the POCSO Act for juvenile victims. The Supreme Court (SC) in Jarnail Singh vs State of Haryana (2013) held that the given statutory provision should also be the basis to help determine age even for a child who is a victim of crime.
• However, in absence of any change in the law or even specific directions, the investigating officers (IOs) continue to rely on the the date of birth recorded in school admission-withdrawal registers — which, in most cases, parents (in the absence of hospital or any other authentic records) are not able to defend in the court.
• Age estimation based on medical opinion is generally so wide in scope that in most cases minors are proved to be major. Once a minor is proved to be a major, the probability of acquittal increases based on other factors such as consent or no injury to private parts. Thus, the POCSO Act has made no difference in investigation when it comes to proving juvenility.

Period of investigation

• Further, the time mandated to complete investigation of rape (as in the CrPC, without a similar provision in the POCSO Act) is two months. Though the aim is to expedite investigation, it has resulted in two significant changes on the field.

1. There is much pressure on the IOs to somehow submit a charge sheet in two months irrespective of what stage the investigation is at. The IOs do not want to invite internal punishment as the Ministry of Home Affairs supervises POCSO cases through the Crime and Criminal Tracking Network & Systems (CCTNS) and State police headquarters. Thus, unfortunately, the focus is largely on completion of investigation in two months irrespective of quality.
2. If a charge sheet was not put up in 90 days of the arrest of the accused, he/she was granted bail. Now, when a charge sheet is put up in 60 days of the FIR (and not arrest), the accused may seek bail immediately after the filing of the charge sheet. Thus, it is the accused, and not the victim, who gets the benefit of completing an investigation in a shorter time.

• The POCSO Act provides that the court shall presume that the accused has committed the offence. No conditions whatsoever are laid down in the POCSO Act in contrast to the Indian Evidence Act (Section 114(b)) which clearly provides for the prosecution to prove recent intercourse, and the prosecutrix to state in court that she did not consent.
• However, it has been observed that even after the minor age of the victim is proved, no such presumption (howsoever small a relevance it may have) is taken up by the court during trial. Under such circumstances, the expected increase in the conviction rate is unlikely to be achieved.

Conclusion:

Therefore, it is time that there is a review of the way the POCSO Act is implemented to see how far it has helped victims of sexual exploitation and what more needs to be done to ensure justice.

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Editorial 2: Flip the page to the chapter on middle schoolchildren

Context:

• After a gap of four years, the Annual Status of Education Report (ASER) report for 2022 was recently released by the NGO Pratham. This nationwide household survey that covers all rural districts in the country generates estimates for schooling and basic learning for every State in India. Data from 2018 and 2022 can be compared with longer run trends over the last decade to see how the COVID-19 years have impacted India.

Foundational literacy and numeracy (FLN):

FLN is broadly conceptualised as a child’s ability to read basic texts and solve basic maths problems (such as addition and subtraction). As the name suggests, foundational literacy is the basic minimum literacy at the first level of education that becomes the foundation for all higher levels of education in future.

• The National Education Policy (NEP) 2020 gives high priority to the acquisition of foundational literacy and numeracy skills especially for children in early grades. “NIPUN Bharat” (where NIPUN is National Initiative for Proficiency in Reading with Understanding and Numeracy) the government’s flagship programme designed to translate policy into practice, is beginning to have traction in many States.
• Given that the policy and implementation focus currently is on early years in primary school, it may be useful to also understand how older children in upper primary grades are faring.

A look at the metrics

• In 2018, the all-India rural enrolment figure for the age group 6-14 years was 97.2%. In ASER 2022 data, this is now 98.4%. The rise has been accompanied by a significant shift away from private schools to government schools.
• Several factors may be at play —

1. Decrease in family income
2. Permanent closures of low-cost private schools
3. Efforts of many State governments to provide services even when schools were closed such as mid-day meal rations
4. Teaching-learning materials shared remotely
5. Worksheet and textbook distribution.

• On the ‘plus’ side, rising enrolment means that more students can benefit for longer, sustained periods of time from schooling. Completion of the entire cycle of eight years of schooling for each cohort of 25 million students is no mean achievement in a country of India’s size and diversity.
• On the ‘minus’ side, with more and more students going through the middle school pipeline and attending secondary schools, there is increased competition for post-secondary opportunities. Board examinations continue to perform a gatekeeping function. Acute examination stress, grade inflation in school-leaving examinations, difficulties of gaining admission into college, and lack of appropriate jobs for many school leavers are all consequences of high enrolment and completion rates.
• Since its inception, ASER has measured foundational skills in reading and arithmetic. The highest reading task on the ASER tool is reading a text at Grade II level of difficulty. In mathematics, the highest level is a numerical three-digit by one-digit division problem, usually expected of children in standard four or so.
• The assessment is done one on one with each sampled child in the household. The child is marked at the highest level that she/he can comfortably reach. The same tasks are used for all children aged 5 years to 16 years.
• ASER data shows that even in 2018, basic skills of children in upper primary grades left a lot to be desired: less than a third of all children in standard five and less than half of those in standard eight could do division in pre-COVID-19 times.
• These low levels which are worrying declined further between 2018 and 2022, especially in reading. ASER evidence suggests that basic learning levels of middle schoolchildren have remained low and stagnant for over a decade. The “value” add of each year of middle school is small.

Way forward for FLN: Thinking ahead

• In the last 10 years, much has changed such as new technologies, new knowledge domains, and new ways of operating. But within our school systems, many children are reaching standard eight without being sufficiently equipped with foundational literacy and numeracy skills, let alone higher-level capabilities.

1. ASER data shows that an “overambitious” curriculum and the linear age-grade organisational structure of Indian schools result in a vast majority of children getting “left behind” early in their school career.
2. In the absence of in-school mechanisms for “catch up”, children fall further and further behind academically. With this comes low motivation to learn and a lack of self-confidence. At the same time, as children reach higher grades, parental and family aspirations for the child’s future increase.
3. Our school system is driven by preparations for Board examinations. Academic content transacted in schools implicitly assumes that students are being prepared for college. However, the reality is that a college degree is neither relevant nor possible for most students who finish secondary school. It is also not clear that a college degree will lead to the prized white-collar jobs that most students and their families are aspiring for.
4. Now that schools have stayed open for most of this school year, most children are back in school, the urgency of dealing with “learning loss” is acknowledged, and we have a policy that speaks of “critical thinking” and “flexible pathways through school”, it is time to rethink and rework what happens with our children once they grow past the foundational stage of schooling.

Conclusion:

Much of the country’s efforts in school education today are focused on ensuring strong foundations for children in the early years. But it is critical that we remember that middle schoolchildren also urgently need support for learning recovery and “catch up”.