At Ayyappanmoola tribal colony in Kerala’s Wayanad district, Babu’s wife asks me to do something to bring her husband back. It would not have been an unusual plea from a woman with a 11-month-old baby distraught at having her husband in jail except for the fact that 21-year-old Babu, from Ambalavayal village, is serving a ten-year sentence for having ‘raped’ her.
When the trial was happening, she went to court and wept, begging that her husband be set free. It didn’t help. Babu got four 10-year-sentences under various sections of the Protection of Children from Sexual Offences (POCSO) Act. The law was enacted in June 2012 to address the prevalence of child sexual abuse in India and stipulates rigorous punishment, speedy trial, child-friendly court proceedings and designated special courts. Babu’s wife still can’t comprehend how she could have been raped without her knowing about it. Even her mother pleaded for Babu before the court. But all that happened was that the Additional Sessions Court in Kalpetta, reduced the quantum of sentence—and it still meant ten years in jail. On 15 September 2015, Babu was sent to the central prison at Kannur. Bizarrely, the Judiciary did stay true to the letter of the law in sentencing him, but says PA Pauran, a practicing lawyer and the state secretary of People’s Union for Civil Liberties (PUCL), that does not always “ensure the delivery of justice.”
In Wayanad, 20 young Tribal men are languishing in jail for offences under POCSO. Except Babu, all the others are remand prisoners who have no one to push for or provide surety for bail. Most of them are in the age group of 20- 25 years and their crime was to have fallen in love and lived together with underage girls, a practice followed by Tribals, unaware that it amounts to child marriage and thus an offence under the law.
Babu belongs to the Paniya community, one of the most backward among Tribals in Kerala. He lost his parents when he was an infant and was brought up by his grandmother. He fell in love with a childhood friend and relative, and they married when she was in the 9th standard at school. Marriage, by their custom, simply means the girl and boy living together after the girl is brought into the boy’s family. No ceremony takes place, and the parents accept it. “We do not have ‘arranged marriages’,” says Biju, a Paniya youth and social worker. “I don’t support child marriage. It has to be discouraged in a sensible manner. Tribal boys who are in jail did not commit sexual abuse. They fell in love and got married. They have no clue about Acts like POCSO.”
No complaint was made against Babu. Information on child marriages is typically passed on to the police by state officials in charge of Tribal affairs, anganwadi teachers, doctors and so on. In Babu’s case, his wife and her mother believe that the doctor whom they consulted when she got pregnant was the one who informed the police. But when I met the doctor, she denied it. What is certain is that the police found out from someone, took the girl and recorded her statement without her being aware of the implications of what she was saying in her honesty about being pregnant and having consensual sexual intercourse with Babu. On the basis of this information, her husband was arrested. His wife’s name is mentioned in the FIR as an ‘informant’, which is against the provisions of the law itself, which prescribes strict confidentiality vis-à-vis the identity of the ‘victim’.
Four months have passed since Babu’s sentence was pronounced. The order can be appealed against, but no application has been moved in the High Court. Legal Services Authority, the state agency authorised to provide free legal aid, should be taking up Babu’s case, but hasn’t. “We met a lawyer at Kalpetta. He demanded a fee of Rs 6,000, but we were unable to raise such a large amount,” says Usha, Babu’s mother-in-law.
In Vythiri Jail, Wayanad, I meet Binu, a 22-year-old from EMS Colony in Kalpetta. Visitors are allowed to talk to inmates only in the presence of policemen, and Binu turns up puzzled and scared. Like Babu, he had lost his parents when young, and after studying till the 4th standard dropped out to become a labourer. He lived with his grandparents, sister and her children in a hut built on land provided by the government. Binu has no idea about constitutional provisions ensuring Tribal rights, free legal aid or laws that penalise child marriage.
He was arrested from his house on 24 December 2015. A few days before that, his 16-year-old wife was picked up by the police saying they wanted to conduct a medical examination. No one knows who had complained, but the law encourages people to squeal on one another by prescribing punishment for those who conceal information on child marriage. Hence all state actors, from anganwadi teachers to Tribal promoters to the police are scared of failing to report such cases when they arise.
Binu’s wife was taken to a shelter home and her statement recorded. Her family members were informed and later the police arrested Binu. “His family didn’t get their land title for 15 years. He was a victim of child labour. Throughout his life when his rights were denied the law didn’t turn up, but it meticulously took its course when he married a girl under 18,” says Dr Hari PG, a homeopath in Kalpetta who has highlighted cases of Tribal youth booked under POCSO. Binu has not received any legal assistance so far.
“Tribal people do not know anything about court proceedings and the Legal Services Authority lawyers seldom attend to their cases,” says a prison officer who does not want to be named. “The lawyers don’t even remember the names of their clients.”
Over the last three years, 3,809 cases have been recorded under POCSO in Kerala. The conviction rate is very low, as in other Indian states. “In most of the cases, the children turn hostile and the accused is acquitted,” says J Sandhya, lawyer and a member of Kerala Child Rights Commission. Institutions like Child Welfare Committee and ChildLine also say that victims and their parents turn hostile later during trial. “There are multiple reasons. There is pressure on the child’s family and even intimidation. The parents, whose paramount consideration is the welfare of the child, strike a compromise deal and the children refuse to identify the accused in the court,” says CK Dineshan, assistant director of ChildLine in Wayanad. A written reply in the Rajya Sabha in December 2014 by Maneka Gandhi, Union minister for women and child development, said that POCSO accused were convicted in 166 cases and acquitted in 389.
“Tribals are soft targets,” says Dr Hari PG. “We are yet to know the magnitude of the problem. So far, we have identified around 20 cases of young Tribal men booked under POCSO and put in prison. None of them have actually committed rape. They just fell in love and lived together with girls less than 18.” He is particular about clarifying that he is not in favour of preserving Tribal customs of early marriage, only arguing that cases of early marriage be distinguished from those of child sexual abuse. “The Tribal custom has to be changed, but this is not the way to go about it,” he says.
As far as the law is concerned, any act of sex with a minor amounts to rape. But consensual sex with an underage girl, even if ‘rape’ according to the Indian Penal Code, can be cause for debate even in the Judiciary. In 2013, an additional sessions court in Delhi, rejected the prosecution plea that POCSO Act prohibits minors from sexual relationships. The judge noted, ‘I am afraid if that interpretation is allowed, it would mean that the human body of every individual under 18 years is the property of the state and no individual below 18 years can be allowed to have pleasures associated with one’s body.’
Sheethal, a TISS fellow working on the Forest Rights Act, says that while it is not possible to support child marriage even if it is a part of any custom or culture, change should come from within the community. “What we need is awareness. Criminalising customary marriages among Tribals and making them live the rest of their lives in prison is not the way to address the problem,” she says.
Father Thomas Joseph Therakom, chairman of the Child Welfare Committee in Wayanad, does not endorse this view and says that penalties imposed on Tribal men marrying minor girls do have a deterrent effect. “We report whatever cases of child marriage that come to our notice. We urge the police to take action,” he says.
Biju, the Paniya social worker, says such a hardline view is cruel. “If they want to change a tradition, they should implement awareness programmes on child marriages instead of arresting the innocent,” he says.
A journey through Wayanad’s Tribal habitations shows why Biju might be right. In tribes like Paniya and Kattunaykkar, there is no concept of a marriage with a ceremony and couples start living together from their teens onwards within their parental home. Many of the men caught under POCSO don’t have marriage certificates or photographs to prove their wedding. Tribals cannot fathom the offence they are said to have committed.
“Disregard of adolescents engaging in sexual activity is a definite blindspot in the POCSO Act,” says Swagata Raha from the Centre for Child and the Law in National Law School of India University, Bengaluru. “While it may have been unintended, young lovers are becoming the target of the POCSO Act while child sexual abuse remains hidden.” Raha, a member of the research team that did a study on the functioning of POCSO special courts in Delhi, believes Wayanad’s ground reality brings out the discordance between criminal laws and customary practices. “It is a cause of concern that Tribal youths have been rendered particularly vulnerable to prosecution under the POCSO Act,” she says.
Sivadasan, a Paniya from Thiruvannur Tribal colony near Muthanga, was released on bail on 12 February this year. He had been arrested and put in prison on 31 October 2014, two days after he brought his girlfriend home. “One night, he came with the girl. She was studying in 9th standard. I tried to convince them that it was better she should continue her studies. Anyhow, we accepted them. After two days, the girl was taken away by the teacher in the nearby anganwadi. We didn’t know the reason and Sivadasan was not at home when they took her. On that night, a team of cops came and arrested my son,” says Vella, Sivadasan’s father who is partially paralysed and believes that the teacher reported the couple to the police. Sivadasan got bail a month ago, but was unable to emerge from behind bars because there was no one to provide security bonds for him. A few activists like Dr Hari and Biju finally got him out.
The POCSO Act stipulates rigorous punishment and does not give room for the courts to mitigate it based on specific circumstances. The Act operates on the presumption of guilt. In Babu’s case, this was the main reason he was jailed. It is, however, also true that child sexual abuse is high in Wayanad. Statistics tell an interesting story. CK Dineshan, assistant director of ChildLine in Wayanad, says, “Sixty cases of child sexual abuse were reported in 2014-15. Among these, Tribal men are accused only in less than ten cases. In the same period, the number of child marriages that were reported was 36.” What is prevalent among the tribes of Wayanad is child marriage rather than child sexual abuse. Tragically, both are seen as the same in the eyes of the law.