In a scathing remark in a child sexual abuse case, the Madras High Court said the “prisoner has forfeited his right to walk among humanity” and confirmed the death penalty of a convict. While the observation underlines the seriousness attached to child sexual abuse crimes and the consequential punishments, it also calls for a deeper look at the status of fast-track court trials, the nature of cases and, more importantly, whether judges can opine while passing judgments.Former Chhattisgarh High Court judge Justice Rajani Dubey has ruled extensively on the Protection of Children against Sexual Offences (POCSO) Act cases in the trial court and as a judge of a constitutional court. In an exclusive chat with The Indian Express, she underpins the reasons behind harsh remarks made by judges in such “heinous crimes” while arguing that the creation of fast-track courts alone cannot speed up the justice process, for strict timelines must be enforced.The Madras High Court recently said that “the prisoner has forfeited his right to walk among humanity”. Do you agree with the language? Can judges go beyond the legal remit to make such observations?Justice Rajani Dubey: A judgment deals not only with the legal provisions and aspects of the case but also reflects the judiciary’s opinions about a case. The views that are expressed in the judgments also have an impact on the public and express condemnation of the heinous crimes. Such strong observations may be justified in cases where they reflect the gravity of the underlying crime.Special POCSO courts were created specifically to ensure speedy trials, yet many cases remain pending for over a year. What legal or administrative rules are failing in the timeline, and at what point does delay in trial violate the rights of the victim or the accused?Justice Rajani Dubey: The delay in trial completion results from a range of factors including but not limited to judicial vacancies, delay in investigations, lack of adequate resources for forensic investigation, adjournments, etc.The process cannot be expected to be sped up just by the creation of fast-track courts; changes and strict timelines should also be enforced in other stages of reporting, registration and investigation. Considerable time is consumed in the process of serving notices to the accused and other parties involved in the case and further in securing the presence of witnesses, and recording evidence and testimonies. All these factors constitute towards prolonged trials. All of which contribute to prolonged pendency.Story continues below this adIt has been rightly said that Justice Delayed is Justice Denied. A prolonged trial negatively affects both the accused and the victim. The victim is forced to relive their trauma during the entire time they are associated with the case, which may remain pending for many years. Even the accused have to live a life of uncertainty as undertrials. Incarceration of people for long periods of time without trial is denying their human rights.However, it must be ensured that the pursuit of timely disposal does not come at the cost of the quality of adjudication. High disposals without effective convictions ultimately negatively affect the justice being delivered and undermine public confidence. Former Chhattisgarh High Court judge Justice Rajani Dubey is an authority on the Protection of Children against Sexual Offences (POCSO) Act for having dealt with child sexual abuse cases in the trial court and as a judge of a constitutional court.According to NCRB, 1.87 lakh cases of crime against children were registered in 2024, showing an increase of 5.9 per cent over 2023. Has the POCSO law been an effective deterrent?Justice Rajani Dubey: The increase in the number of registered cases cannot be directly inferred to indicate the effectiveness or ineffectiveness of a law. The increase in the number of reported cases can have many reasons, one of these being rising awareness amongst people and also increasing willingness to approach the authorities.Story continues below this adAs we know, many crimes, especially those of a sexual nature, go unreported. The deterrence effect of a law cannot be judged merely based on the number of reports; it also depends on the overall effectiveness of the implementation of the law, which has to be judged across all the stages like investigation, trial and disposal.The POCSO Act prescribes severe punishments, including life imprisonment and the death penalty under Section 4 for penetrative sexual assault, and up to the death penalty under Section 6 for aggravated offence, respectively. NCRB data shows nearly 70,000 child victims last year; 64 per cent of cases were registered under these two sections alone. Why are such severe statutory deterrents failing to stop the most heinous crimes against children?Justice Rajani Dubey: Severe sentences cannot be expected to be the sole flag bearers as deterrents when there is a clear gap in implementation on the ground. Unfortunately, our criminal justice system continues to grapple with prolonged trials, delays in investigation, witness hostility and low conviction rates (the causes of which may be many). These factors ultimately dilute the deterrent effect of strict sentences as there is no certainty of punishment. There is still a lot of stigma and social prejudice associated with reporting sexual offences, particularly those involving children.The implementation must be strengthened at every stage to signal the seriousness with which the matters of such nature are being treated by the state. The Victims, parents, teachers, and communities must feel confident in reporting offences without fear of stigma or retaliation.Story continues below this adThe police must register FIRs promptly and without hesitation and conduct expeditious investigations. This must be followed by timely trials so that those found guilty are punished without undue delay. It is only when the law is enforced with certainty, promptness, and consistency that stringent statutory punishments can achieve their intended deterrent effect.Also Read | A ‘Romeo-Juliet’ clause in POCSO may be needed to prevent over-criminalisation of behaviour that is developmentally typicalThe 2024 NCRB figures also indicate that in 96.7 per cent of serious POCSO cases, the accused was known to the child, whether a family member, neighbour, or acquaintance. From your time on the bench, how heavily does this close relationship complicate trials, where child victims often face immense family or societal pressure to retract their statements or turn hostile during cross-examination?Justice Rajani Dubey: The close relationship of a victim to the accused poses several complications in the trial process, and these start right from the stage of reporting. A lot of cases of abuse are not reported because there may be a lack of trusted adults that the children can approach. Many a time, the accused is the only earning member of the family and the crime is not reported, or statements are forced to be retracted in fear of it becoming a threat to the survival of the family.Even during the testimony of the witnesses, the presence of the accused in the same room as the child used to pose a hindrance as the victim was often intimidated and afraid. It was then ensured that there was some distance and separation between the accused and victim so that the victim could give their statement freely without any intimidation.Story continues below this adThe Supreme Court recently suggested introducing a ‘Romeo and Juliet’ clause in the POCSO Act to exempt genuine teenage relationships from severe prosecution. Where should the law draw the line to stop criminalising adolescent romances without creating loopholes for actual perpetrators?Justice Rajani Dubey: As observed by the Supreme Court, there are many instances when the POCSO provisions are invoked in cases of consensual adolescent relationships. While an exception may be considered, it must be made only after careful deliberation and narrowly construed to prevent dilution.Some factors, such as the close-in-age exception, voluntary participation, lack of force, coercion or manipulation, may be considered while drafting the exception. This would also require the authorities and judges to closely examine the factual matrix of each case to ensure that the protection of children, the primary objective of this legislation, is not compromised.(Also written by Avinash Verma, Avinash is an Intern with the Indian Express)