How an incompetent and apathetic ‘system’ denied justice to a child rape victim

This is the second part of the story on the case. Read the first part.

It’s been three weeks since Arjun Kumar, 20, was acquitted in the 2016 rape of a minor girl in Delhi. The child, Shalini, was 11 years old at the time and has an intellectual disability.

While acquitting Arjun, who was the only accused in the case, the special POCSO court in Saket pulled up the Delhi police for multiple lapses in its investigation.

A major lapse was that the police never recorded Shalini’s statement under section 164 of the Code of Criminal Procedure which the judgement noted had “sounded [a] death knell” for the prosecution’s case.

Section 164 requires that a rape victim’s testimony is recorded by a magistrate within 24 hours of the police being notified, instead of just the police taking down the victim’s statement. This is mandated by the Criminal Amendment Act of 2013 enacted in the wake of the Delhi gangrape in 2012. The entire point of amending the law was to increase credibility of the police investigation and more quickly apprehend those responsible.

As advocate R Malati has pointed out, “The statement of the child victim is not just an evidence but a voiced consonant of agony she is undergoing.”

Importantly, the POCSO Act of 2012 says that while recording a statement or testimony from a child with a “mental or physical disability”, the court has to seek the assistance of “a special educator or any person familiar with the manner of communication of the child or an expert in that field”.

Shalini has an intellectual disability. When Newslaundry asked Manju Bala, the investigating officer in the case, why her statement had not been recorded under section 164, she said, “It was impossible to communicate with the child. She could barely speak.”

She added, “You have to realise this is not only our fault. It is the system. Where was I to get an interpreter from? I asked a few friends who have helped me before, but they were not available. Also, there was much political pressure that we had to act fast, so we arrested the man.”

Bala makes a fair point about the problem with the “system”.

Officially, as per the POCSO Act, the police is obliged to inform a Child Welfare Committee within 24 hours of receiving a report of child abuse. The CWC is in charge of ensuring that legal processes are followed and that the child is treated with care. If the child needs shelter, the CWC informs the District Child Protection Unit to rehabilitate them.

Both the DCPU and CWC are constituted under the Juvenile Justice Act.

The DCPU is also responsible for creating “a resource directory of interpreters, special educators, counsellors, translators, etc”, according to Dr Kavita Mangnani, director of restorative care at HAQ Centre for Child Rights, an NGO.

“This directory should be shared with all child welfare organisations,” Mangnani said. “But so far, as per my knowledge, no such resource directory exists.”

Bala also said she contacted the CWC for an interpreter but there was a “lot of delay”.

Newslaundry contacted Vaidhehi Subramaniyam, chairperson of the Child Welfare Committee in Delhi.

She said, “It is true – if this was the case, the CWC and DCPU are responsible for finding an interpreter on time. Since it happened six years ago, it is a bit difficult to verify if CWC was informed or not.”

She also said that, at the moment, neither the CWC nor the DCPU have a resource directory of interpreters or special educators.

‘A very poor understanding’

So, who do the police or courts turn to when they need experts to help communicate with children?

Manju Bala said police personnel often call people they know for help. “Sometimes I call friends who are good with children,” she said, “and I pay for them from my own pocket.”

But this ad hoc approach is hardly ideal. There’s also a very poor understanding of disabilities and the corresponding kind of help a child would need.

For instance, the Indian Sign Language Research and Training Centre in Delhi is the only government-constituted body that has an official list of special interpreters. It was set up in 2011 and currently has 304 certified interpreters.

But this isn’t the sort of “interpreter” that would help Shalini, for instance, since she does not communicate using sign language.

Akhil, an interpreter certified by the ISLRTC, said he has been called by the police or court for work multiple times in his capacity as an interpreter. But he would frequently meet the child and find out they had an intellectual disability.

“There is a very poor understanding of disability within our system,” he said. “The police just think any interpreter can deal with any disability.” When this happens, he added, he refuses to work with the child and recommends that the authorities contact a special educator or expert who works with children with intellectual disabilities.

Nisha, another ISLRTC-certified interpreter, pointed out that even if a child is nonverbal or has a hearing impairment, they might not be trained in sign language. “Then again, we can’t work with the child,” she said, “so the statement cannot be taken down.”

Jagdamba Gusain has been a social worker for 17 years, of which she’s been associated with the CWC for 10 years. Since she’s been in the field for so long, she’s often called by courts and cops, she said, even though she is not trained to deal with all disabilities.

“But if I walk away saying it is not my expertise, these children will not get justice,” Gusain said. “This is our system and we have to work within it. So, I try my best to connect with the victims and help them communicate, even if I don’t know how to.”

Interpreters also face the issue of payment – there is no clarity as to who exactly pays them.

“Sometimes, the police make the parents of the victim pay,” said Shruti, an interpreter certified by ISLRTC. “Sometimes, advocates pay. Some good-willed policemen will pay from their own pockets. Courts are more systematic in a way – they will pay for travel and food but payment often gets very delayed.”

And while interpreters can refuse to work with the police due to payment issues, it can be tricky with courts.

“If we don’t go when the court summons, there’s the risk of warrants being issued to secure our presence,” Shruti said. “So then, whether I get paid or not, I go.”

Shruti usually charges Rs 3,000 for a day’s work. She’s presently working on one case with a child with a hearing impairment. So far, she has attended four hearings and has not been paid yet.

Nisha, on the other hand, said she’s often worked for free. “There are no standardised norms for our fees,” she said. “Very often, the police expect us to work for free, or they give us travel and snacks allowance.”

Akhil said he’s sometimes brought into work for two hours, but then winds up working for four or six hours. If payment has already been promised, he’s usually paid only for the two hours alone.

Kumar Shailabh, the lawyer representing Shalini, said that apart from the CWC and DCPU (which don’t have directories anyway), courts should also have resource directories for interpreters, special educators and experts.

“It is very sad because there’s currently no real system to help children with special needs,” he said. “Between two gigantic systems, the CWC and the DCPU, children simply fall through the cracks.”

No data, no policy

Policies are framed when data pushes policymakers to do so. When it comes to people with disabilities, India does not have a lot of data to provide this impetus.

In 2007, India ratified the United Nations Convention on the Rights of Persons with Disabilities. The 2011 census reported that 2.21 percent of the population – about 2.68 crore – have some kind of disability. Sixty-nine percent of them live in rural India.

Yet the categorisation of these disabilities is basic – “in seeing”, “in hearing”, “in movement”, “mental illness”, “multiple”, for example – even as studies have highlighted the multiple barriers faced by women and children with disabilities who have been sexually abused.

In 2019, the UN committee that monitors the implementation of the convention had recommended that India’s National Crime Records Bureau collect “disaggregated data by sex, age, place of residence, relationship with perpetrator and disability in case of violence and exploitation of women and girls with disabilities”.

In January 2021, over 90 disability activists, organisations and academics reiterated this recommendation in a letter to home minister Amit Shah, while flagging the “large number of reported cases of sexual assaults on disabled girls/women”.

But this hasn’t happened. The most recent data from the NCRB in 2021 did not include data on crimes against people with disabilities.

When Newslaundry asked CWC chairperson Vaidhehi Subramaniyam if the CWC maintains data on sexual abuse against children with disabilities she said, “I think so, but we are not authorized to give the data. You have to write to the Department of Women and Child Development in Delhi.”

Newslaundry has written to the department, and also filed an RTI seeking data on children with disabilities who have suffered sexual abuse as well as details on why the NCRB does not record these statistics. This report will be updated if we receive a response.

The names of the victim, her relatives, the accused, and the interpreters have been changed to protect identities.