Despite SC intervention, victim compensation in POCSO cases poor due to cumbersome process, failure to invoke law

The Supreme Court has noted that no scheme for compensation existed for victims of sexual abuse under POCSO and ordered that victims under POCSO should be compensated under Compensation Scheme for Women victims/Survivors of Sexual assault/other crimes of NALSA.

Only five percent of children who are victims of sexual offences and who have filed cases under Protection of Children from Sexual Offences (POCSO) Act 2012 are getting compensation as stipulated in the Act despite the fact that the Supreme Court of India is closely monitoring the cases under POCSO act. Also, it’s alarming that only one percent of victims are getting interim compensation.

The Ministry of Women and Child Development has yet to set up compensation policy under POCSO Act though this act was implemented on 14 November, 2012 and it's now over seven years since the Act has been in force.

Concerned about the low percent of victims who are getting compensation under POCSO Act, the Ministry of Women and Child Development (WCD) is considering bringing an amendment to POCSO to ensure that victims under POCSO Act get compensation on the lines of National Legal Services Authority’s (NALSA’s) Victims Compensation Scheme given under section 357 A of Code of Criminal Procedure (CrPC).

Member secretary of NALSA, Alok Agrawal said WCD is consultation with NALSA and is considering an amendment to Section 33 of POCSO Act which deals with compensation. Presently, compensation is decided by the special POCSO court and compensation is paid at the end of a case and is linked to judgment. Also, interim compensation is also ordered by special POCSO courts. Activists maintain that victim compensation should be independent of conviction in courts.

Speaking about compensation under POCSO, Niharika Chopra, spokesperson of Kailash Satyarthi Children’s Foundation said, “Compensation shouldn’t be contingent on any legal procedure. A victim should be given interim compensation within a week to provide immediate relief to the child. Currently, victims under POCSO cases are being compensated under the victim compensation scheme by NALSA.”

The Supreme Court has noted that no scheme for compensation existed for victims of sexual abuse under POCSO and ordered that victims under POCSO should be compensated under NALSA’s Compensation Scheme for Women victims/Survivors of Sexual assault/other crimes.

Compensation under Victim Compensation Scheme

NALSA has paid Rs 90,25,44,598 in the financial year April 2016 - March 2017 as victim compensation, Rs 123,46,17,773 in April 2017-March 2018 and Rs 1,68,43,92,746 in April 2018-March 2019. But these are consolidated figures.

Speaking in a telephonic conversation, Agarwal said, “We don’t maintain separate figures for minor victims and those who are getting compensation are victims of rape and other, 357 A of the CrPC. Also, we don’t have separate statistics for POCSO as it is not in our mandate.”

Replying to an RTI, Gujarat State Legal Services Authority (GSLSA) stated that they have given compensation to 81 victims in 2017, 289 victims in 2018 and 122 victims in 2019 (up to 18 September, 2019). This is compensation given to all victims of crimes who have incurred injury and who are in need of rehabilitation. So these figures are not restricted to victims under POCSO cases only yet despite being consolidated figures, they are woefully inadequate when it is compared to the number of cases filed under POCSO Act since it was implemented.

Number of victims given compensation in Gujarat under POCSO Act 2012 (figures given by GSLSA)

If one sees the number of cases registered under POCSO Act in Gujarat since 2013 then the figures are alarming and rising steadily each year.

Table of number of cases registered under POCSO Act in Gujarat since 2013 to 30 June, 2019

 Speaking about the extremely low percentage of victims getting compensation, World Vision India’s Head of Anti-Child Trafficking Program Joseph Wesley said, “In our experience we have seen that many victims are not informed of their rights as a victim/survivor to claim compensation. Also the procedure is cumbersome and it is very difficult for a parent is he or she is a daily wage labourer. To get compensation, it requires several appearances before the District Legal Services Authority (DLSA).”

He further added, “Unless victims and their families are assisted by NGOs at every stage it becomes difficult for them to go through the entire process to get compensation.”

Welsey also pointed out that in cases of child sex trafficking, police are not filing charges under POCSO act but under Indian Penal Code 373 and 370 for child trafficking and for human trafficking respectively, so victims become ineligible to apply for compensation under POCSO Act.

Another worrying fact is that a high percentage of children are turning hostile in POCSO courts, especially where family member are the alleged perpetrators of sexual abuse which often results in the accused being acquitted, though not always as was seen in several cases. One such case occurred in Mumbai in July 2019 when the minor victim of rape by her father turned hostile.

The victim said that her father was raping her for five years but she turned hostile in court. Though her father was convicted based on other witnesses, facts and circumstances, Special POCSO Judge AD Deo directed DLSA and the Aarey Police Station to return the compensation of Rs 3 lakh which was given to her under Maharastra’s Manodhairya Scheme.

But advocate Ashish Kumar, who has represented victims in many POCSO cases in Delhi, said, “Victims are under tremendous pressure and they turn hostile in such circumstances. When the courts ask to recover the compensation, the victim is being re-victimised. You are sending out a message that you are very strict in awarding compensation but there should be proper support for POCSO victims so that they don’t turn hostile in the court.”

There seems to be a lack of understanding of the principle behind compensation it seems.

“Compensation is not a reward or inducement given to the victim for her cooperation in the criminal trial process, it is for compensation for the loss or injury a victim suffers as a result of the violation of her person, dignity and rights,” Wesley said.

It should be noted that Supreme Court registrar Surinder S Rathi reported to the apex court in July 2019 that victims under POCSO were getting very little compensation. His findings were that under POCSO four percent victims got compensation in 2016 and five percent victims got compensation in 2017.

To ensure that victims under POCSO get compensated, Wesley said, “Courts should inform them at the beginning of the process itself and the process of application should be made simple. Also, DLSA should adopt a victim-centric approach and support victims even where victims are finding it difficult to prove the case.”

This article is part of Media Fellowship to report on Child Sexual Abuse in India awarded by World Vision India.

This article was first published in Firstpost on November 28, 2019