Sexual Crimes Against Children Still Registered Under Section 377, Not POCSO

Children in India. Credit: Ondrej/flickr/CC BY-NC-ND 2.0

Children in India. Credit: Ondrej/flickr/CC BY-NC-ND 2.0

New Delhi: The 2015 Crime in India report by the National Crime Records Bureau (NCRB) has revealed that 60% of victims in all the cases registered under Section 377 – the Indian Penal Code provision that outlaws ‘unnatural sex’ – are children, the Indian Express reports. Police stations across the country seem to have continued the practice of registering cases concerning sexual activity with children under Section 377 instead of the Protection of Children from Sexual Offences Act (POCSO) which is meant to cover exactly such crimes.

In 2015, the total number of cases registered under POCSO (other than incest cases) was 8,664. The number of victims amounted to 8,694. All  sexual offences against children (up till the age of 18) are supposed to be registered under POCSO and not Section 377. As an NCRB officer told the Indian Express, “When a specific Act has been created precisely for protection of children, offences must be registered under this Act. That would give us a comprehensive picture of such crimes against children. We could then put out a better and comprehensive data that would help formulate policies.”

Uttar Pradesh recorded the most number of cases under POCSO (1,440), followed by Gujarat (1,115), Karnataka (1,073) and West Bengal (1,006).

Another concern with these numbers is that registering cases against children under 377 makes it harder for policymakers to understand the extent to which the Act is used to exploit people from sexual and gender minorities in India.  The Indian Express interviewed a police officer from Uttar Pradesh on the matter, who said, “The biggest charge against Section 377 is that it can be used as an extortion tool by police against the LGBT community. In such cases, perhaps, no case is ever filed to reflect in data. So, if cases where children are victims are taken out of the equation, it could provide a better understanding of Section 377.”

However, Enakshi Ganguly Thukral, the co-founder of Haq Centre for Child Rights, disagrees with this idea. “Why shouldn’t Section 377 be used to record cases involving children? Till such time that familiarity with POCSO happens, people are going to be using both. The IPC [Indian Penal Code] also applies to children.”

On concerns that using Section 377 makes it more difficult to understand data on the extortion of LGBT people by police, she said, “I don’t think it obfuscates data or anything like that. The age group is very clear in these reports, so we know exactly what’s happening.”

Notably, the number of cases registered under Section 377 (total and for children) as well as those recorded under POCSO increased in 2015 compared to 2014. Thukral thinks the numbers are increasing because people as well as the police are increasingly willing to register cases. She says the increase may actually be a positive sign, “I don’t want people to stop recording. It’s good that there’s an increase in reporting because there is less silence around it [sexual crimes against children].”

 

The 2015 report also broke down the number of cases registered under 377 by city. Cases in Delhi constituted well over a quarter of all cases registered in Indian cities. Mumbai followed as a distant second.

Thukral says the progress in reporting will only be sustained if it is met by a  “speedy justice system, efficient courts, guaranteed prosecution.”  “People are going to want justice and if they do not get it because of high pendency that continues to plague the system, then there will be silence again.”