India’s landmark child abuse law, Narco test and polygraph test, Pradam, Quasi Judicial bodies

India’s landmark child abuse law

Ten years after the enactment of The Protection of Children from Sexual Offences (POCSO) Act, which deals specifically with child sexual abuse, an analysis of POCSO cases across India has found gaps in its implementation – including increasing pendency of cases and a high rate of acquittals.

What is POCSO, and why was it enacted in 2012?

1. The Constitution of India has incorporated several provisions to protect the rights of children and India has also been a signatory to landmark international instruments, such as the Convention on the Rights of the Child, the Protocol to the Convention on the Rights of the Child on the Sale of Children, etc.,
2. However, India lacked any dedicated provision against child sexual abuse. Cases would be tried under different provisions of the Indian Penal Code, which was found to be ill-equipped.
3. In the 1990s, a child sexual abuse racket was busted in Goa, following which the state government enacted a law to promote child rights in 2003.
4. Also, the Special Expert Committee under Justice VR Krishna Iyer presented a draft code for child rights in India – the Children’s Code Bill, 2000.
5. These two initiatives established the basis for dedicated legislation against child sexual abuse. In 2005, the Department of Women and Child Development prepared a draft bill to address different offences targeted against children.
6. The Study of Child Abuse, a 2007 report published by the Ministry of Women and Child Development covering 13 states with a sample size of 12,447 children, 2,324 young adults and 2,449 stakeholders, looked at different forms of child abuse and found that 50.76% of children surveyed reported having faced one or more form of sexual abuse.
7. Contrary to the general perception then, the overall percentage of boys reporting experiencing sexual abuse was much higher than that of girls.
8. In September 2010, the Ministry of Women and Child Development prepared a draft Protection of Children from Sexual Offences Bill, 2010 which after several rounds of revisions came into force as the POCSO Act on Children’s Day – 14 November, 2012.

What are the key findings on crimes against children?

1. The analysis has found that 43.44% of trials under POCSO end in acquittals while only 14.03% end in convictions. For every one conviction in a POCSO case, there are three acquittals.
2. Acquittals are significantly higher than convictions for all the states studied. For instance, in Andhra Pradesh, acquittals are seven times more than convictions; and in West Bengal, acquittals are five times more than convictions. In Kerala, the gap between acquittal and conviction is not very high with acquittals constituting 20.5% of the total disposals and convictions constituting 16.49%.

POCSO Act – General Principles

The Protection of Children from Sexual Offences Act, 2012 mentions 12 key principles which are to be followed by anyone, including the State Governments, the Child Welfare Committee,

the Police, the Special Courts, NGOs or any other professional present during the trial and assisting the child during the trial. These include:

1. Right to life and survival – A child must be shielded from any kind of physical, psychological, mental and emotional abuse and neglect
2. Best interests of the child – The primary consideration must be the harmonious development of the child
3. Right to be treated with dignity and compassion – Child victims should be treated in a caring and sensitive manner throughout the justice process
4. Right to be protected from discrimination – The justice process must be transparent and just; irrespective of the child’s cultural, religious, linguistic or social orientation
5. Right to special preventive measures – It suggests, that victimised children are more likely to get abused again, thus, preventive measures and training must be given to them for self-protection
6. Right to be informed – The child victim or witness must be well informed of the legal proceedings
7. Right to be heard and to express views and concerns – Every child has the right to be heard in respect of matters affecting him/her
8. Right to effective assistance – financial, legal, counselling, health, social and educational services, physical and psychological recovery services and other services necessary for the child‟s healing must be provided
9. Right to Privacy – The child‟s privacy and identity must be protected at all stages of the pre-trial and trial process
10. Right to be protected from hardship during the justice process – Secondary victimisation or hardships for a child during the justice procedure must be minimised
11. Right to safety – A child victim must be protected before, during and after the justice process
12. Right to compensation – The child victim may be awarded compensation for his/her relief and rehabilitation

The Necessity of the POCSO Act

India has one of the largest populations of children in the world – Census data from 2011 shows that India has a population of 472 million children below the age of eighteen. Protection of children by the state is guaranteed to Indian citizens by an expansive reading of Article 21 of the Constitution of India and also mandated given India’s status as a signatory to the UN Convention on the Rights of the Child. Before the implementation of the POCSO Act,  the Goa Children’s Act, 2003, was the only specific piece of child abuse legislation.

Child sexual abuse was prosecuted under the following sections of the Indian Penal Code:

• I.P.C. (1860) 375- Rape
• I.P.C. (1860) 354- Outraging the modesty of a woman
• I.P.C. (1860) 377- Unnatural offences

However, such a measure had drawbacks since the IPC could not effectively protect the child due to various loopholes like:

• IPC 375 doesn’t protect male victims or anyone from sexual acts of penetration other than “traditional” peno-vaginal intercourse.
• IPC 354 lacks a statutory definition of “modesty”. It carries a weak penalty and is a compoundable offence. Further, it does not protect the “modesty” of a male child.
• In IPC 377, the term “unnatural offences” is not defined. It only applies to victims penetrated by their attacker’s sex act and is not designed to criminalise sexual abuse of children.

As such a legislative reform with a specific child protection act in mind was needed.

Narco test and polygraph test

A court in Saket, New Delhi, has allowed Delhi Police to conduct a narco test on Aaftab Poonawalla, the 28-year-old man accused of killing his 27-year-old live-in partner Shraddha Walkar in May this year. After police moved court seeking permission for the test, Poonawalla consented, telling the judge he was aware of the consequences.

What is a narco test?

1. In a ‘narco’ or narcoanalysis test, a drug called sodium pentothal is injected into the body of the accused, which transports them to a hypnotic or sedated state, in which their imagination is neutralised.
2. In this hypnotic state, the accused is understood as being incapable of lying, and is expected to divulge information that is true.
3. Sodium pentothal or sodium thiopental is a fast-acting, short duration anaesthetic, which is used in larger doses to sedate patients during surgery.
4. It belongs to the barbiturate class of drugs that act on the central nervous system as depressants.
5. Because the drug is believed to weaken the subject’s resolve to lie, it is sometimes referred to as a “truth serum”, and is said to have been used by intelligence operatives during World War II.

Is this the same as a polygraph test?

1. No. A polygraph test is based on the assumption that physiological responses that are triggered when a person is lying are different from what they would be otherwise.
2. A polygraph test does not involved injecting drugs into the body; rather instruments like cardio-cuffs or sensitive electrodes are attached to the suspect, and variables such as blood pressure, pulse rate, respiration, change in sweat gland activity, blood flow, etc., are measured as questions are put to them.
3. A numerical value is assigned to each response to conclude whether the person is telling the truth, is deceiving, or is uncertain.
4. A test such as this is said to have been first done in the 19th century by the Italian criminologist Cesare Lombroso, who used a machine to measure changes in the blood pressure of criminal suspects during interrogation.
5. Similar devices were subsequently created by the American psychologist William Marstron in 1914 and by the California police officer John Larson in 1921.

Are there no restrictions on putting accused through these tests?

1. There is, indeed. In ‘Selvi & Ors vs State of Karnataka & Anr’ (2010), a Supreme Court Bench comprising then Chief Justice of India K G Balakrishnan and Justices R V Raveendran and J M Panchal ruled that no lie detector tests should be administered “except on the basis of consent of the accused”.
2. Those who volunteer must have access to a lawyer, and have the physical, emotional, and legal implications of the test explained to them by police and the lawyer, the Bench said.
3. It said that the ‘Guidelines for the Administration of Polygraph Test on an Accused’ published by the National Human Rights Commission in 2000, must be strictly followed. The subject’s consent should be recorded before a judicial magistrate, the court said.

Pratham receives the Indira Gandhi Prize for its educational efforts.

The 2021 Indira Gandhi Prize for Peace, Disarmament, and Development was handed to Pratham, an NGO working in the field of education, by former vice president Hamid Ansari. The honour is given in appreciation of Pratham’s efforts to provide the nation’s children with high-quality education, notably during the epidemic.

More about the Prize

1. According to Mr. Ansari, Pratham’s efforts have been praised all around the world. He claimed that Pratham also provided education using digital technology so that students may continue their study while schools were closed due to the epidemic.
2. Pratham CEO Rukmini Banerji remarked during her acceptance speech that the organisation supported community and family involvement in a child’s development.Many of the lessons we have gained have come from the local community and youngsters, the woman stated.
3. Sonia Gandhi, the Chairperson of the Indira Gandhi Memorial Trust, stated during her speech that Indira Gandhi had left an irreparable mark on the nation. Even her detractors concur that Ms. Gandhi had a core personality trait that remained constant and characterised who she was and what she did.
4. She continued to praise Pratham, saying, “It has done a lot to make school instruction more powerful and meaningful… It has sparked new ideas in teaching as well as monitoring and evaluating as a tool to enhance learning results.

About Pratham

1. One of India’s biggest non-governmental organisations is called Pratham. Madhav Chavan and Farida Lambay jointly founded it.
2. It works to give impoverished children in India access to high-quality education. In order to give pre-school education to children living in slums, Pratham was founded in Mumbai in 1994.
3. As of now, its interventions are spread across 23 Indian states and union territories, and it has supporting chapters in the US, the UK, Germany, Sweden, and Australia.

Making the Quasi-Judicial Bodies Works

There is a class of quasi-judicial agencies that are not discussed in conversations on the pendency of cases. Their failure to administer speedy justice leads to harassment of citizens, besides abetting criminal activity by unscrupulous elements.

What are the quasi-judicial bodies

• Role of adjudicating the law: A quasi-judicial body is “an organ of Government other than a Court or Legislature, which affects the rights of private parties either through adjudication or rulemaking”.
• Not a court of law: It is not mandatory that a Quasi-Judicial Body has to necessarily be an organization resembling a Court of Law. For example, the Election Commission of India is also a Quasi-Judicial Body but does not have its core functions as a Court of Law.
• Some examples of Quasi-Judicial Bodies: Election Commission of India, National Green Tribunal, Central Information Commission (CIC), Lok Adalat etc.

Functioning of quasi-judicial bodies

• Supervise the administrative disputes: They primarily oversee the administrative zones. The courts have the power to supervise over all types of disputes but the quasi-judicial bodies are the ones with the powers of imposing laws on administrative agencies.
• Lessen the burden on courts: These bodies support to lessen the burden of the courts. Quasi-judicial activity is restricted to the issues that concern the particular administrative agency. Quasi-judicial action may be appealed to a court of law.
• Limited role of adjudication: Their powers are usually limited to a particular area of expertise, such as financial markets, employment laws, public standards, immigration, or regulation.
• Rules of justice are pre-determined: Awards and judgements of quasi-judicial bodies often depend on a pre-determined set of rules or punishment depending on the nature and gravity of the offence committed.
• Its award can be challenged in court: Such punishment may be legally enforceable under the law of a country it can be challenged in a court of law which is the final vital authority.

Problems faced by quasi-judicial authorities

• Understaffing of bodies: The maladies that these agencies suffer from are far graver than judicial set-ups, as they are staffed by revenue authorities who have several other functions. Usually, many of these offices are understaffed.
• More administrative and less judicial work: Their engagement with duties such as law and order, protocol, coordination and other administrative functions leaves them with much less time for court work.
• Limited access to records: Their access to court clerks and record keepers is limited. Computers and video recorders are not available in many of these courts. Only a few states such as Maharashtra, Madhya Pradesh and Rajasthan have electronic platforms for supporting activities such as the filing of cases, publication of cause lists and sending summons.
• Lack of knowledge about procedures: Several of the presiding officers lack proper knowledge of law and procedures which has landed many a civil servant in deep trouble in sensitive matters such as those related to arms licences.
• Data is unavailable: Data on the level of pendency or the speed of disposal is not compiled in many states. This is why there is scarcely any attempt to increase staff strength. There is hardly any public scrutiny say by the press or legislature.

How to improve the functioning of Quasi-judicial bodies?

• Priority of the government: The government should make the efficient functioning of these agencies a priority and clearly articulate its position on the issue.
• Collection of data is must: Detailed data on the functioning of these agencies must be collected and published from time to time at least annually.
• Digitization of judicial data: An electronic platform should be established to handle all ancillary work related to the administration of justice, such as filing of complaints, issue of summons, movement of case records between courts, issuing copies of the judgments and so on.
• Mandatory annual inspection: annual inspections of the subordinate courts should be made mandatory. This should be an important indicator for assessment by the superior authority.
• Study on functioning of this bodies: Interdisciplinary research on the functioning of these courts should be encouraged. This would identify the areas of improvement such as legal reforms or issue of clear guidelines.
• Time to time training of authorities: Regular training and orientation of the adjudicating authorities should be taken up from time to time.
• State performance index should be published: The state index of performance of these quasi-judicial courts be made and published.
• Online publication of awards by authorities: Important decisions, guidelines and directions could be compiled and published on the portal of the apex adjudicating forum such as the Board of Revenue.
• Rigorous induction training: More rigorous induction training of officials handling judicial work would help. The importance of judicial work should be instilled among the trainees and the skill and confidence in handling them should be developed.
• Procedural reforms: Procedural reforms such as minimizing adjournments, mandatory filing of written arguments and other such reforms proposed by bodies like the Law Commission for reform of the Civil Procedure Code should be adopted by these adjudicating bodies.

Conclusion

• Quasi-judicial bodies form the substantial institutions of judicial system. It is regularly side-lined when we talk about the judicial reforms. If we could make our quasi-judicial bodies function properly and efficiently, it will reduce the burden on High courts and Supreme court.

India’s Economic Growth story and the future roadmap

By 2047, India will complete 100 years after Independence. By that time, India strives to achieve the status of a developed economy, which means achieving a minimum per capita income equivalent to $13,000.

Economic growth during the British period

• Poor state of economy: It is not realized often that India’s economic progress in the first half of the 20th century under British rule was dismal. According to one estimate, during the five decades, India’s annual growth rate was just 0.89%.
• Negligible growth in per capita: With the population growing at 0.83%, per capita income grew at 0.06%. It is not surprising that immediately after Independence, growth became the most urgent concern for policymakers.

Economic growth after Independence

• In the early period, India’s strategy of development comprised four elements:

1. Raising the savings and investment rate;
2. Dominance of state intervention;
3. Import substitution, and
4. Domestic manufacture of capital goods.
5. Modest growth till 1970: India’s average growth till the end of the 1970s remained modest, with the average growth rate being 3.6%. With a population growth of 2.2%, the per capita income growth rate was extremely modest at 1.4%.
6. Improvement in social indicators: On certain health and social parameters, such as the literacy rate and life expectancy, there were noticeable improvements.
7. The success of green revolution: While India had to rely on the heavy imports of food grains on a concessional basis, initially, there was a breakthrough in agriculture after the Green Revolution.
8. Industrial base widened: The industrial base expanded with time. India became capable of producing a wide variety of goods including steel and machinery.
9. Unsustainable fiscal policy: Plan after plan, actual growth was less than what was projected. The Indian economy did grow at 5.6% in the 1980s. But it was accompanied by a sharp deterioration in the fiscal and current account deficits, and the economy faced its worst crisis in 1991-92.

Statistics of economic growth after 1991

• Rapid economic growth: Between 1992-93 and 2000-01, GDP at factor cost grew annually by 6.20%. Between 2001-02 and 2012-13, it grew by 7.4% and the growth rate between 2013-14 and 2019-20 was 6.7%.
• Sustained period of high growth rate: The best performance was between 2005-06 and 2010-11 when GDP grew by 8.8%, showing clearly what the potential growth rate of India was. This is the highest growth experienced by India over a sustained period of five to six years. This was despite the fact that this period included the global crisis year of 2008-09.
• Rising investment rate: There was a corresponding increase in the savings rate. The current account deficit in the Balance of Payments (BOP) remained low at an average of 1.9%.
• Setback to growth after 2011-12: However, the growth story suffered a setback after 2011-12. The growth rate fell to 4.5% in 2012-13 according to the 2004-05 series. The growth rate since then has seen ups and downs. The growth rate touched the 3.7% level in 2019-20.

Roadmap for Future Growth

• Keeping the sustained growth rate: The first and foremost task is to raise the growth rate. Calculations show that if India achieves a 7% rate of growth continuously over the next two decades and more, it will make a substantial change to the level of the economy. India may almost touch the status of a developed economy.
• Maintaining the incremental capital output ratio: If India maintains the incremental capital output ratio at 4, which is a reflection of the efficiency with which we use capital, India can comfortably achieve a 7% rate of growth.
• Investment must be increased: Raising the investment rate depends on a number of factors. A proper investment climate must be created and sustained.
• Private investment is crucial: While public investment should also rise, the major component of investment is private investment, both corporate and non-corporate. It is this which depends on a stable financial and fiscal system. The importance of price stability in this context cannot be ignored.
• New technologies must be embraced: India needs to absorb the new technologies that have emerged, and that will emerge. Its development strategy must be multidimensional.
• Strong Export and manufacturing: India need a strong export sector. It is a test of efficiency. At the same time, India needs a strong manufacturing sector. The organized segment of this sector must also increase.
• Strengthened the social safety nets: As output and income increase, India must also strengthen the system of social safety nets. Growth without equity is not sustainable.

Challenges for India’s growth

• Low per capita income: India today is the fifth largest economy. This is an impressive achievement. However, in relation to per capita income, it is a different story. In 2020, India’s rank was 142 out of 197 countries. This only shows the distance we have to travel.
• Declining growth in developing countries: The external environment is not going to be conducive. The Organization for Economic Co-operation and Development reports a secular decline in growth in developed countries.
• Climate change may affect the growth: Environmental considerations may also act as a damper on growth. Some adjustment on the composition of growth may become necessary.

Conclusion

Considering the India’s population, India has no option but to grow continuously. Government has undertaken major structural reform and policy initiatives like GATI-SHAKTI to give fillip to growth of economy. These are the steps in the right directions and more such liberalizing initiatives need to be encouraged.