How the COVID-19 pandemic has derailed fast-track justice for survivors of sexual assault cases

Murmurs greet her every time she leaves home. Her sexual assault has been a topic of discussion among her neighbours for a while now. While some show sympathy, others pity her as a “hapless victim”.

With the COVID-19 pandemic derailing fast-track courts (FTC) in most states in the country, the closure she hopes for eludes her. For the survivor and her family, it is not only the delay, but also the perpetual societal stigma that comes with it that's worrisome.

The girl, a minor, was sexually assaulted by a family member, and awaits trial. Regular hearings, including the ones relating to sexual assault cases in FTCs across courts, have stopped in the current situation.

"We want the case to get over soon so that we can move on with our lives but what’s making it worse is the delay," said her mother.

The incident came to light in 2020 after the survivor got pregnant. The case, pending before a FTC in the national capital, has witnessed multiple adjournments in recording of her testimony with the onset of the pandemic. She is yet to record her testimony, although she has attended the bail hearing of the accused on a few occasions.

The survivors and their families face the brunt of the pandemic at various fronts - in terms of mental health, finances and logistics.

The mother now worries over her child’s mental health given the prolonged legal period. “Bas chahti hoon ki matter jald se jald khatam ho jaye...Wo har kisi ka saamna karti hai, toot jaati hai...Humaare andar ki aatma jhinjhud jaati hai.. (My only wish is that the case gets over…She has been facing a lot and breaks down every time…Our soul has been violently shaken),” she said.

The mother and the daughter have been able to go to court only on one occasion in the prevailing situation.

“Bahut himmat karke aage badhe. Jab ye hua tab aisa laga ki aage kuan hai peeche khayi. Humlog chahte hain matter jald se jald khatam ho jaaye...Peeda kam hogi. Parivar ko sambhalna hai... (We moved forward after mustering a lot of courage… When the incident took place, we found ourselves nowhere. We just want the case to conclude so that we can take care of ourselves),” the mother said.

Data suggests a steady rise in the pendency of cases under provisions of the Protection of Children from Sexual Offences (POCSO) Act and Section 376 (rape) of the Indian Penal Code (IPC) over the last year or so.

In Delhi, over 13,000 cases under the POCSO Act and rape laws are pending as on date.

Experts say that the current situation has further amplified the survivors’ anxiety of not being able to remember the sequence of events when it comes to narrating their ordeals before courts.

Dr Kavita Mangnani, a clinical psychologist who provides counselling to rape survivors and their families, underlines plight of the accused, who face continued incarceration during the pendency of trials.

“The prevailing scenario is only adding to their misery as well,” she added.

But families of survivors who face court and the police stay wary of the legal rigmarole, wanting a fast-track conclusion to their cases.

“Many want their daughters, who are survivors, to marry as soon as the case concludes,” said Mangnani, Director, restorative care at HAQ Centre for Child Rights.

The only silver lining, according to the expert, is the presence of dedicated FTCs. But these have been rendered redundant during the pandemic.

“In normal times, the families would be advised to be patient with the hearings, but the pandemic has only added to the anxiety of families with the mounting pressure to remember the ordeal,” Mangnani stated.

In the illustrated case, the minor survivor entered into her ninth month of pregnancy without realising it in the lockdown. In several cases, the gaps in a survivor’s testimony are used by the defence to seek the perpetrator’s acquittal. The expert said that the delay due to the pandemic is adversely affecting the survivor’s memory and mental health.

In 2019, the Department of Justice of the Union Ministry of Law and Justice released the scheme on FTCs for “expeditious disposal” of POCSO and rape cases. It stated that the key motive behind introducing a harsh punishment was to create deterrence against such crimes.

The scheme underscored that the same was “only possible if the trial in the court is completed within the time frame and justice is delivered expeditiously to the victims.”

Section 35(2) of the POCSO Act mandates a Special Court to "complete the trial, as far as possible, within a period of one year from the date of taking cognisance of the offence."

However, despite a strong law and policy framework, a large number of rape and POCSO Act cases are pending in various courts in the country.

The scheme aimed at disposing of 1,66,882 cases pending trial in 1,023 FTCs across the country.

"A total of 1,023 FTCs will be set up under the Scheme out of which 389 FTCs will exclusively handle POCSO Act cases as per directions of the Apex Court. The remaining 634 FTCs will deal with either rape cases or both rape and POCSO Act cases depending on the pendency and requirement," it stated.

Advocate Kumar Shailabh, who specialises in cases of crimes against women and children, underlines that the delay in trial, especially prompted by the pandemic, could be detrimental to the survivor's case.

"There are survivors who are six or seven years of age. The pendency has forced them to remember their ordeal and there are bound to be gaps in their testimonies with the passage of two to two-and-a-half years, when their examination comes up," he stated.

He said that there is a marginal rate of convictions in POCSO cases and the present situation might just add to the narrative of calling sexual assault cases as “false and frivolous.”

“Then there is survivor’s mental health. Most of them live under the guilt of not having informed their families when, suppose, someone was stalking them. They feel they are the reason for their parents’ miseries,” Mangnani pointed out.

The last one year or so has also seen cases where the survivor was a minor, but has either turned major or is on the verge turning an adult.

“The families in general want to withdraw cases when there is a prolonged delay and with the pandemic, they are continuing to face the social stigma,” she said.

The experts says it is often seen due to the delay in trial, the survivor’s family struggles to find "good grooms”.

Despite being counselled, families often get agitated when the case doesn’t end as they find themselves in the middle of an unceasing cycle of guilt, anger and blame.

Three families have withdrawn their services ever since the pandemic began, Mangnani informs. Many are migrant families who have returned to their native places in the pandemic.

“For cases that came up in 2019, it has already been a delay of two years so they feel there is no hope and have returned to their respective hometowns. Families find it difficult to survive owing to lack of work,” she said.

One such family came back to Delhi for hearings, but when the matter was adjourned again due to the pandemic, the survivor's testimony did not take place. Later, news came in that the survivor had been married off as the family couldn't go on fighting the case.

The delay in trial also considerably impacts incest cases - where the child survivor stays away from home at state-run shelter homes, experts said. The pandemic has forced them to stay away from their own homes for longer.

According to Mumbai-based child rights lawyer Saziya Mukadam, there is a risk that survivors could be tutored if their testimony is not recorded at the right time.

She said that child survivors, when they turn adults, return to their respective homes and with the delay in recording of the evidence owing to the pandemic, there is a possibility of being tutored at home. “In such cases, justice dispensation is defeated ultimately,” Mukadam opined.

Such children also start to miss their families and socialising, given the prolonged confinement.

“There is a limited social circle in shelter homes. Children miss schools. How does a child endure a situation like this? Imagine if we have to stay somewhere for a month,” said Mangnani.

Advocate Debapriya Mukherjee, who handles cases of sexual assault among women and children in Kolkata courts agreed.

“It is akin to being confined in a prison,” she said.

Mukherjee added that even in normal times, conclusion of fast-track trials was a rarity.

In a scenario where the family decides to not pursue the legal fight due to the delay in trial, the children who stood up for themselves could lose trust in the system, said Mangnani.

In a 2019 case, a minor was abused by her step-father, but she couldn’t record her testimony during the pandemic. When Mangnani met the survivor to inform her about the upcoming date in court, not wanting to relive her tribulation, the survivor told her,

“Didi aap fir aa gaye mujhe yaad dilaane (you have come again to remind me of the incident).”

The cross-examination of the survivor by the counsel of the accused in the case is pending.

Experts cite family pressure and social stigma as some of the reasons why survivors turn hostile in such cases. Many a time, other family members don't support the survivor. With a vanishing income for many families in the pandemic, and financial and logistical constraints, children might feel that the incarceration of an earning member of the family, who is the accused, might create more hurdles for the family.

Senior Advocate Rebecca John calls the threat of the virus as "very real", highlighting that the pandemic period was the best time for the disposal of cases of milder punishments, keeping in mind the ruling in Common Cause v. Union Of India.

The senior lawyer, who successfully defended a criminal defamation case while conducting the final arguments entirely on a digital platform, said that ways have to be devised for these cases to be heard virtually.

"Devise ways and means to stop overcrowding of courts. Everybody doesn't have to come to courts. Just ensure that the litigants join virtually and the investigating officer joins virtually. The judge, prosecutor and defence counsel are present physically and no one else," she suggested.

John added that accused persons can be exempted from physically appearing and can be directed to join proceedings virtually. "Why can't police officers be examined virtually?" she asked on the point of examination of witnesses and recording of evidence.

"In Delhi, complainants in POCSO cases sit in different rooms. There is no contact. They can sit in those rooms. The defence counsels can either ask questions virtually or come physically. There have to be more creative ways of doing it. The child witness in POCSO cases doesn't come to the courtroom. They are put in a witness protection room..." she said.

John added,

"We can't have everyone coming to court. There has to be a line drawn somewhere. The threat of the virus is not something I discount."

Mukadam said that for a survivor and their family, much of the stress is relieved when the testimony is over.

"The POCSO law is beautifully designed. The court oversees questioning of the survivor from defence counsels. There shouldn’t be any difficulty in having a smooth recording of statements through video-conferencing," she suggested.

As suggested by experts, creative ways of hearings could be a probable norm in future given the uncertainty about when the pandemic is going to end.

However, as Chief Justice of India N V Ramana pointed out recently, in addition to the urban centers, there was also an immediate need to augment technological and judicial infrastructure in rural and tribal areas.

With limited means to secure justice in such places, recognising and fixing the underlying issues could help boost disposal.