SC weekly roundup in Pocso act
Protection of Children from Sexual Offences Act, 2012 – Juvenile Justice (Care and Protection of Children) Act, 2015; Section 3 – A support person – whether involved from the early stages of lodging a report or brought on board shortly thereafter – can play a tremendous role in offering encouragement, reassurance, and guidance, merely from their knowledge of the legalese, armed with a compassionate child-friendly approach. Their potential in providing moral support and guidance, which directly translates to better and more just outcomes both in terms of prosecution, and rehabilitation, cannot be overstated. To fulfil their role as envisaged, their primary focus must be the child’s immediate care and protection, and to play the role of a helpful intermediary between the child, its family/guardian, and the various institutional stakeholders and authorities. In these interactions, the support person should bear in mind the principles enunciated in Section 3 of the Act, 2015 while engaging with the child victim, and their families. These include – the principles of dignity and worth, participation, best interest, safety, positive measures, non-stigmatising semantics, non-waiver of rights, equality and non-discrimination, and right to privacy and confidentiality. (Para 6)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Children from Sexual Offences Act, 2012 – The enactment and bringing into force of the POCSO Act was not merely in furtherance of this country’s commitment to international instruments, but its resolve to and attempt at creating a world as secure and as free from fear, for the most innocent and vulnerable section of its citizens, i.e., children and young adults. Behaviour – physical, verbal, and non-verbal, ranging from what discomfits a child to as horrifying as rape and physical sexual abuse have been criminalized. Special mechanisms to provide access to the justice delivery system, and ensure speedy justice, have been devised. Yet, a society’s commitment to such a cause does not cease by mere enactment of any law, but its willingness, and those governing and administering it, to create and ensure effective overall frameworks which support and strengthen its institutions. (Para 1)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Children from Sexual Offences Act, 2012 – There are numerous aids prepared, to help in understanding the role of the support person, and how to maximise their impact. The Ministry of Women and Child Development released the Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012 which offers detailed guidance for the use of professionals and experts under the POCSO Act (albeit issued in 2013, i.e., prior to the POCSO Rules, 2020). Similarly, another useful resource tailored specifically for the use of support persons, is the ‘Handbook for Support Persons 2021 – Assisting Child Victims of Sexual Violence’ which is a handy open access resource, available for download from the internet. These resources, comprehensively elucidate child-friendly best practices, and explain what not to do, as a support person, in a lucid and accessible manner. (Para 7)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Children from Sexual Offences Act, 2012 – Witness Protection Scheme, 2018 – Importance of a support person accompanying the child victim at the time of recording statement and deposition – In addition to maintaining confidentiality of all information, and addressing the concerns of the child and family, the support person is responsible for accompanying the child during recording of statement, medical examination, depositions, and to assist in all other interactions at the investigation, pre-trial, and trial stage. The support person is to make available public or private emergency and crisis services; ensure availability of free legal aid; provide assistance with navigating the victim compensation scheme; track the status of investigation, arrest, and filing of charges of the accused person; follow the dates of the court proceedings to enable the victim or family to attend as required; and be abreast of any other developments such as grant of bail, detention status, etc. of the accused. (Para 5)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Children from Sexual Offences Act, 2012; Section 39 – Protection of Children from Sexual Offences Rules, 2020 – Directions issued on Comprehensive assessment of support persons ecosystem, Participation of relevant authorities for such assessment, Data collection from district child protection unit, Guidelines and training, Periodic training of all personnel, Reporting mechanism establishment, Standard operating procedure (sop), Role of support persons, Remuneration of support persons to be commensurate with qualification and experience, Model guidelines and precedent consideration, Comprehensive victim support, Role of support institutions and state’s responsibility for implementation – Concerned authorities to file a status report by October 4, 2023. (Para 11)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Children from Sexual Offences Act, 2012; Section 39 – Protection of Children from Sexual Offences Rules, 2020; Rules 4, 5, and 10 – Model Guidelines – A support person is to provide information, emotional and psychological support, and practical assistance which are often crucial to the recovery of the child. This can go a long way in helping them cope with the aftermath of the crime and with the strain of any criminal proceedings – in many ways a support person acts as guardian ad litem for the child. (Para 4)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Children from Sexual Offences Rules, 2020 – In crimes against children, it is not only the initiating horror or trauma that is deeply scarring; that is aggravated by the lack of support and handholding in the days that follow. In such crimes, true justice is achieved not merely by nabbing the culprit and bringing him to justice, or the severity of punishment meted out, but the support, care, and security to the victim (or vulnerable witness), as provided by the state and all its authorities in assuring a painless, as less an ordeal an experience as is possible, during the entire process of investigation, and trial. The support and care provided through state institutions and offices is vital during this period. Furthermore, justice can be said to have been approximated only when the victims are brought back to society, made to feel secure, their worth and dignity, restored. Without this, justice is an empty phrase, an illusion. The POCSO Rules 2020, offer an effective framework in this regard, it is now left to the State as the biggest stakeholder in it – to ensure its strict implementation, in letter and spirit. (Para 12)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Children from Sexual Offences Rules, 2020 – Role of a ‘Support Person’ – From the point of registering an FIR/complaint under the POCSO Act, the victim and their family are required to interact with the police machinery, medical officers and hospitals, the Magistrate, Special Court and/or Juvenile Justice Board, the concerned CWC, and other stakeholders – which in itself can be daunting and overwhelming (over and above the already traumatic experience of the crime itself), often dissuading them from pursuing the case altogether. Noticing the need for support at various stages, the role of a ‘support person’ was institutionalised in the POCSO Rules, 2020, to fill this lacuna. (Para 3)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Children from Sexual Offences Rules, 2020 – Role of a ‘Support Person’ – The present writ petition, arose from the strife caused to an individual victim in her painstaking struggle for justice while navigating the police, investigation stage, and court processes, for the prosecution of an offence under the POCSO Act. At numerous stages, she was revictimized, and faced severe hardships; the issues arising from the individual case, have been dealt with by way of continuing mandamus, wherein this court through a series of orders has monitored the aspects requiring special attention. During those proceedings, it was noticed that the role of a ‘support person’ as envisaged in the POCSO Rules, 2020, despite being a progressive step – remains unfulfilled, or is given effect to, in a partial or ad-hoc manner, thus limiting its positive potential in offering support to victims and their families. (Para 2)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Children from Sexual Offences Rules, 2020; Rule 4(14) ‘Form-A’ – A support person has been appointed only in 4% of POCSO cases. The availability of services of a support person is not merely directory or suggestive – but a legal entitlement. (Para 9)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Children from Sexual Offences Rules, 2020; Rules 2(f), 4(8) and 5(6) – Clearly delineating the scope of assistance to be rendered by a support person, the Rules also stipulate that if the Child Welfare Committee (CWC), in contravention of its duties fails to appoint one, or for whatever reason, the child victim and their family wish to engage someone else, they are free to seek assistance from a qualified support person externally [ref: proviso to Rule 5(6)]. Termination of their services, for whatever reason, is also covered under Rule 4(11). (Para 3)
Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
Protection of Human Rights Act, 1993 – Conduct of election is the sole responsibility of the Election Commission. The Human Rights Commission cannot encroach on the autonomy, independence and function of another constitutional authority such as the Election Commission. (Para 9 – 18)
National Human Rights Commission v. West Bengal State Election Commission, 2023 LiveLaw (SC) 659