By Dr Swati Jindal Garg
Horror stories of sexual assault and other sexual crimes experienced by girls in the country are rampant and cannot be ignored. Although some survivors may stay silent for years before sharing their stories, the act is in no way, shape or form acceptable or worthy of being condoned. In the past, however, the issue seemed to have been overlooked and many women were subject to being sexually harassed and assaulted by men who felt as though they were in the right and looking to gain positions of power.
The situation has not changed much over the years, but finally steps are being taken by the government which is making an inroad towards doing something in order to help the victims of sexual assault, specially those minor girls who become pregnant as a result of these assaults.
Some, however, might say that this is a case of too little too late as years have gone by for these victims living within a society that would rather brush things under the carpet than face these wrongdoings head-on and take responsibility for the same. Without support, even powerful women fell to the silence that follows a sexual assault as it has a tendency to eat away the strength of even the mightiest of them all. The world today is changing, but unfortunately, these are baby steps and sexual assault is still happening every single day. People are beginning to talk about it more, but it is still not reaching a point where there is a solution. The creation of the Nirbhaya Fund by the Ministry of Women and Child Development has brought with it a ray of hope in the hitherto dark world of the minor assault victims.
“Recognising the physical and emotional trauma that minor victims of rape or aggravated assault undergo, and in certain circumstances where such victims become pregnant, we in the ministry have decided to provide medical infrastructural support, apart from the financial support that such minor victims are in need of, under the aegis of the Nirbhaya fund,” said Union Minister for Women and Child Development Smriti Irani.
The recently launched scheme not only aims to provide shelter, food and other daily needs, but also aims at providing safe transportation for attending court hearings and legal aid to minor girls who have been abandoned by their family due to forced pregnancy, rape or gangrape, or any other reason, and have no other means to support themselves, but are still somehow mustering the strength to participate in the legal battle in order to ensure that the accused are brought to justice.
The importance of this newly set up fund cannot be overstated as the same will be providing a big help in providing the funds required for setting up shelters for such victims. This could be either in the nature of standalone shelters or even wards earmarked for such victims in the already pre-existing child care institutions (CCIs), as per the suggestions of the concerned state governments. Keeping in view the special needs of a minor rape victim, it has even been kept in mind that in case of wards inside existing CCIs, the person in-charge of the institution will ensure that a separate safe space is provided to such victims, “as her needs may be different from those of the other children residing there”. This will ensure integrated support and assistance to minor victims under one roof, said the ministry officials.
Enumerating the steps sought to be taken by the Ministry, Irani also said: “We have additionally leveraged the administrative structure of Mission Vatsalya, in collaboration with state governments and child care institutions, to actualise this support to minor victims on the ground. It is known that the government of India has accelerated access to justice for minor victims of rape by establishing 415 POCSO fast track courts in the country. This additional support, which will be available to CCIs, up to the age of 18 years, and in after-care facilities up to the age of 23 years, is a manifestation of the Prime Minister’s (Narendra Modi) humane approach towards protection of women and children in the country.”
The problem of minor rape victims becoming pregnant and then not getting support from their near and dear ones or the authorities is not new. The National Crime Records Bureau in the year 2021 reported 51,863 cases under the POCSO Act. Officials of the Ministry of Women and Child Development revealed that 64% or 33,348 cases out of those were reported under Sections 3 and 5 of the Act, which pertains to penetrative sexual assault and aggravated penetrative sexual assault, respectively. Taking into consideration these huge numbers and recognising the physical and emotional trauma that minor victims of rape or aggravated assault undergo, a planned action plan has been formulated by the Ministry to not only provide financial support, but also the much-needed medical infrastructure that is required for the overall upliftment of such victims.
This additional support under the new scheme will be available for girls up to the age of 18 years at the level of CCI and for women up to 23 years at aftercare facilities. The scheme in particular covers any girl below the age of 18 years who is a victim of penetrative sexual assault and has become pregnant. It is not mandatory for the girl to have a copy of the FIR for availing the benefits under the scheme. The provision of legal aid in particular to such victims goes to show the intent of the government that no stone shall be left unturned in order to bring to justice the perpetrators who till now used to get away scot free as their victims were either too scared to stand up to them or too helpless.
Women and men are impacted differently by crime, both as offenders and victims or witnesses, and have different experiences going through the criminal justice system. They can have different priorities and needs as well as different levels of access to the criminal justice system. The authorities will have to keep this in mind and accordingly legal aid providers and service providers would need to be trained to effectively integrate a gender perspective into all aspects of legal aid delivery.
The western countries having already established a sound legal aid programme are already well ahead of India which still has a long way to go before it can be truly termed as a gender equal society which provides adequate safety to female citizens.
The UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, Principle 7 also requires that legal aid be effective and provided promptly at all stages of the criminal justice process which is still a far cry in India. This principle reflects international jurisprudence on legal aid that stipulates that it is not enough to merely allow a theoretical or illusory right to legal assistance, but rather legal aid must be “practical and effective” in the way in which it is applied. As per the UN Guidelines, effective legal aid includes, but is not limited to, the right to be informed of the right to legal aid, timely and unhindered access to legal aid providers, confidentiality of communications, access to information and to case files, and adequate time and facilities to prepare legal cases, as well as the provision of legal advice and education, and mechanisms for alternative dispute resolution.
It still remains to be seen whether the promise of legal aid which has been extended to the female victims through the new scheme incorporates all the above mentioned aspects as penned down in the UN Guidelines or not. Rupees 74.10 crore worth of funds is not a small amount and it is being expected that huge inroads in the field of female victim upliftment will be made by using them, but whether the fund ultimately succeeds in serving its purpose or not is something which only time will tell. Till then, active steps need to be taken by the government at both the central as well as the state levels to make sure that the new scheme is implemented.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi