Week 3: Monastic Codes and POCSO in Schools
As you may recall from my previous blog, Tessa and I ended last week with a visit to Namgyal Monastery School to discuss with the principal monk his experience regarding the effectiveness and implementation of the POCSO Act. Our conversation—while interesting—danced around the topic of child sexual assault in a way we had not yet encountered in previous interviews. We were told, in simple terms, that POCSO cases do not exist at Namgyal because peace is taught and, as an example of the kind of issues they may deal with: if a teacher were to ever hit a child, that teacher would have to come to the principal monk to have a talk. However, hitting children is not the kind of harm Tessa and I were there to inquire about and help to prevent. Curious and with many unanswered questions, I started researching Buddhism in an effort to learn about some aspect of belief that would have consistently steered our conversation away from sexual assault.
In my very limited understanding, nuns and monks ordained in the Tibetan tradition follow the vows set forth in the Mulasarvastivadin school of monastic codes. These codes include such “downfalls” as being deaf to advice, destroying the seeds of a plant, engaging in financial dealings, and speaking words to do with sex. This last downfall mentioned is one of the reasons I wonder if maybe the principal monk evaded our questions about POCSO cases by focusing on other harms and on the stellar medical treatment their students receive. With this new information seeming to impose a substantial roadblock to any further productive discussion, I spent the rest of the day reading Sri Lankan and Thai case law around violation of not just monastic but criminal codes to look for a possible approach to handling POCSO cases here in Tibetan monasteries. Unfortunately, monasteries tend to be left to their own devices to handle monks who break the law (for example, there was a recent rape case in South India where the monk was sentenced not to jail time or fine, as called for in the Indian Penal Code, but instead was sentenced to build a temple, following a long tradition of repenting by erecting religious structures), and I have yet to find anything helpful for our particular situation in the case law of any other country. So, we are at a sort of impasse with enforcing the POCSO Act in monasteries.
Searching for another path to effectively revise the POCSO Act, this time focused on the issue of underreporting of child sexual assault cases, our boss asked Tessa and I to comb through the Indian constitution and case law around a fundamental right to education and find an argument supporting a fundamental right to sex ed. The idea behind this search was that underreporting of cases is caused, at least in part, by a lack of knowledge on the part of children about what assault actually is, about what violence looks like, and that requiring sex ed through a fundamental right to education would provide this education for children and, consequentially, increase reporting of cases. We were able to find a few cases arguing that the broadness of “education” includes sexual education, but this path forward has been relatively fruitless as well.
In reading cases from the High Courts and Supreme Court here in India, something that I have been struck by is the difference in organization in reporting cases and delivering the opinions of the justices here versus in the U.S. At home, I have found myself seven pages into an opinion with no idea what has actually been said about the case and having to chart the facts of the case to keep them straight as I sift through the holding to find them. Here, by contrast, every case we have read has had numbered paragraphs that sort through the case in chronological order, that explain in simple terms why facts are significant, and how those facts were weighed to determine the outcome of the case. It has made research here much more efficient than I am used to and has made understanding holdings easier than expected. I also expected to be reading translations of cases into English but have since learned that High Courts—courts that have jurisdiction over an entire state—and the Supreme Court are conducted in English because it is the only common language across India, and attorneys are scolded if they speak in their native language in court.
Back to Tessa and I’s interview schedule, we spent a couple of hours on Thursday down into the valley in Dharamshala proper visiting Tsering and Tenzin, the director and deputy director of the Sambhota Tibetan School Society, and the school they work in. We learned that they have handled fortunately few POCSO cases, and that they believe underreporting is less of an issue than it used to be since the installment of POCSO Committees. The primary gaps in POCSO that Tsering and Tenzin have observed is that schools do not always report cases to the police, and that there is a lack of clarity surrounding the standard operating procedures schools are meant to follow in handing these cases. They also brought to our attention that the inception of a POCSO case can only come from the child. A teacher who suspects abuse can initiate a conversation with the child, but there is nothing beyond that that they are allowed to do. This was a new issue for Tessa and I to consider, and one that we drafted a possible solution to in the days following.
After our interview, we walked around the school with Tenzin and were granted further insights into her experience as a POCSO Committee member, and who else she thought we should talk to to identify more gaps in the current law. She also explained to us that the school was initially founded as a school for adults to learn Hindi and vocational skills after escaping Chinese-occupied Tibet, but that as the numbers of refugees dwindled and a second generation of Tibetans-in-exile grew, the school transitioned to primarily a school for children. At present, there are only around 20 adult students at the school.
Leaving Sambhota, Yargyal, Tessa, and I started the walk back to the main road to try to find a taxi to take us back up the mountain to McLeod Ganj and lunch. It only took about 20 minutes walking in the heat down in the valley for Yargyal to laugh at Tessa and I for looking beat ...something neither of us could argue with. What could we say? The heat in the middle of the afternoon down in Dharamshala is much more intense than the heat up in McLeod in the morning on our walk to work, and we are still not used to it!