A year ago, a group of sixteen Delhi-based lawyers from diverse backgrounds made a commitment to provide free legal services to disadvantaged children who have survived sexual abuse, through iProbono, an organization working towards access to justice.
As the coordinators of this panel of lawyers, we had a ringside view of the experiences of children within the criminal justice system; leading us to insights that were both disturbing and enlightening.
Amal* was the first child we represented. She was assaulted at 4, and went through three surgeries to regain bodily function. The man who raped her was held not to be guilty by the trial court on various incorrect grounds and the child's testimony against the accused was discredited because of her tender age. In the High Court of Delhi, iProbono's lawyers challenged the trial court judgment, and secured a life-sentence for the man as well as compensation for the child.
Amal is now a happy 7-year old studying in one of Delhi's best schools. Her school admission under the EWS quota was secured on the basis of the press reporting around her case, including extensive coverage of the case by NDTV. Her mother, a former construction worker, is upbeat despite her struggles in single-handedly running a household of three children.
Their story is a testament to how much can be achieved through the legal process and through sensitive journalism.
Sadly, not all the children we have represented are so lucky. Through iProbono's panel of lawyers, we have represented over 20 children in the last one year. Matters that were referred to us included opposing bail applications filed by the accused, seeking compensation for the children, challenging lower court orders in favour of the accused.
We were humbled in finding time and again that access to law and access to Justice are two different projects. Akash*, a survivor of penetrative sexual assault by four boys in his class, reminds us of the limitations of the criminal justice system. The four boys who assaulted Akash were sentenced to imprisonment for a month in a juvenile detention home after being found guilty of sexual assault. In legal terms, it is a victory.
Akash's mother, Neerja*, who works as a beautician in a local parlour, quietly narrated the heartbreaking psychological fallouts of the assault on Akash's once cheerful personality, including continued Post Traumatic Stress Disorder. "My son has failed two years in school and has developed obsessive compulsive habits. I have no answer when he asks me why his classmates haven't said sorry to him. All he wanted was an apology and an acknowledgment that a wrong was done to him by his classmates," said Neerja, visibly weakened by years of struggling with the fallouts of the assault in 2013.
An apology was the one thing that Akash, now 14 years old, wanted the most, and the one thing that we could not secure for him as his lawyers because our justice system is defined by the binary of winning and losing. The remedies that would aid complete rehabilitation of a child often do not exist at all. Our work reminds us that while we should assist children in ensuring that perpetrators of assault do not roam free, we should not limit our vision to providing access to legal recourse, but should continually enquire what we can do to secure access to Justice.
Our second observation has been that there is a class bias in the reporting and prosecution of child abuse cases. All the cases we handled involved children and perpetrators who were economically disadvantaged. This could be due to the link between poverty and increased vulnerability of children, but we mustn't be misled by the silence from the middle and upper classes.
Often, the state and police system are less effective in successfully prosecuting a person with the means to stifle investigation. Latest statistics indicate that 53% of children in India face sexual abuse, yet most of the stories we hear about involve highly disadvantaged children and perpetrators, leading to a false perception of the safety of children from middle-class and affluent homes. Several social studies indicate the crippling effects of unaddressed child abuse in middle-class and upper-class homes, and it is useful to remember that the silence from these segments of society is often sinister.
Thirdly, we were confronted by the inability of the law to contemplate and handle child abuse within the unit of the family. Our frameworks of guardianship dictate that the child's welfare is to be looked after by a natural guardian, but where the natural guardians are perpetrators of abuse, courts and state institutions stumble in the dark as they walk the fine line between acting as guardians of the child and respecting the family unit. In India, where the institution of the family is afforded tremendous prestige, abuse within the home is poorly addressed with a lot of systemic discomfort around the issue.
Approximately 30 per cent of the cases we handled involve abuse within the home, and imprisonment of the perpetrator alone is insufficient to address the interests of the child. Imprisonment is also insufficient in improving the circumstances of the child continuing to live within a family unit where one member is in prison.
Some thought has to be devoted to this issue, and perhaps separate guidelines should be formulated for state agencies faced with the challenges of handling cases of incest and abuse within the home to address the painful circumstances.
Against this bleak backdrop where insufficiencies and tragedies are writ large, lawyers representing vulnerable children give us hope in our institutions. The skill and the commitment of the lawyers we have worked with, drive home the difference that high-quality legal representation can make to the lives of vulnerable litigants. It also underscores the crying need for all serious legal professionals to be involved in providing free legal services to disadvantaged groups and individuals. It is only when capable lawyers involve themselves in pro bono work that we will be able to re-imagine how access to law can translate into access to Justice.
*Names changed to protect identity
(Swathi Sukumar is an advocate practicing in Delhi and is the co-founder of iProbono India.)
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Akash, Sexually Assaulted By Classmates, Will Never Get An Apology