No immunity from Pocso despite marrying survivor, having child

Source: Times of India

Nagpur Bench of Bombay HC ruled that the FIR cannot be dismissed merely because the girl married the accused and later became a mother. It held that the girl's consent was legally irrelevant and the POCSO Act must prevail until any amendment of law. 

To read more, please go to the following link

https://timesofindia.indiatimes.com/india/no-immunity-from-pocso-fir-despite-marrying-survivor-having-child-hc/articleshow/124220269.cms

Delhi HC raps woman for misuse of POCSO Act against estranged husband

Source: Times of India

Criticising a mother for using her minor daughter "as a weapon" to settle personal scores with her estranged husband by lodging a case against him under the Pocso Act, Delhi High Court dismissed her plea to summon his family members and relatives — the girl's grandmother and paternal aunts — as accused. To read more please go to the following link:

https://timesofindia.indiatimes.com/city/delhi/hc-raps-woman-for-misuse-of-pocso-act/articleshow/124219191.cms 

POCSO FIR cannot be quashed on basis of compromise: P& H High Court

Source: Times of India

Punjab and Haryana HC has ruled that an FIR under Pocso Act could not be quashed on a 'compromise', even if the accused married the survivor and they had children. To read more please go to the following link:

https://timesofindia.indiatimes.com/city/chandigarh/pocso-fir-cant-be-quashed-based-on-compromise/articleshow/123029962.cms

Implicit Reliance On Medical Evidence Can’t Be The Basis Of Conviction In POCSO Cases; Such Evidence Is Only Corroborative: Bombay High Court

Source: Verdictum

The Bombay High Court has held that implicit reliance on medical evidence by Courts cannot be the basis of conviction in POCSO cases as such evidence is only corroborative. The Court acquitted a man convicted under Section 376-AB of the IPC and Sections 6 and 10 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The Bench quashed the 20-year rigorous imprisonment sentence handed down by the Special POCSO Court, observing that the Trial Court’s Judgment was based only on substantive evidence. To read more please go to the following link:

https://www.verdictum.in/court-updates/high-courts/bombay-high-court-pradeep-gulabrao-choudhari-v-state-of-maharashtra-2024-bhc-nag-13178-medical-evidence-corroborative-1560143 

Supreme Court Directs States/UTs To Implement S.19(6) Of POCSO Act & JJ Act Provisions To Ensure Rehabilitation Of Child Victims

 Source: Live Law

In a case where it was found that the State of West Bengal had failed to take care of a victim of an offence under the Protection of Children from Sexual Offences (POCSO) Act, the Supreme Court has issued directions to all States/Union Territories to strictly implement the provisions of the POCSO Act and the Juvenile Justice (Care and Protection) Act, 2015 (JJ Act) to ensure the welfare of such victims. To read more please go to the following link:

https://www.livelaw.in/top-stories/supreme-court-directs-statesut-to-implement-s196-of-pocso-act-jj-act-provisions-to-ensure-rehabilitation-of-child-victims-267197

A road map to deliver justice to child survivors

Source: Hindustan Times dated 17.01.2020

Prabhat Kumar (Head, Child Protection) and Manish Thakre (Head, Urban Programme and Policy) at Save the Children.

The pendency of cases under the Pocso Act is worrying. A dedicated and specialised cadre is urgently needed.

Justice delayed is justice denied. Pendency of Protection of Children against Sexual Offences Act, 2012, (Pocso), cases is causing tremendous harm to child survivors who are seeking timely justice across India. The Act stipulates that a case of child sexual abuse must be disposed-off within a year from the date the offence is reported. However, there are 160,989 cases of Pocso Act pending trial in courts across the country. Timely availability of data (age- and gender-based segregation) is also a big concern at the state, district and town level. In September 2019, the law ministry proposed a scheme to have fast track special courts (FTSC) for the expeditious disposal of cases of rape and Pocso Act. There are 389 districts in the country in which the number of pending cases under the Pocso Act exceeds 100.

The Out of Shadow Index, a benchmarking index developed by the Economist Intelligence Unit, examines how stakeholders in 40 countries are responding to the threat of child sexual abuse and exploitation. India ranks 15th on this index, with a score of 57.6 out of 100. The key indicators important for criminal justice delivery process on which India scores 50 or less includes access to victim support programmes, complaint mechanism, civil society engagement, protecting child interests, child-specific rape laws, contextual legal framework, national plans and policies, government and law enforcement capacity and social protection. This research also specifically recommend strengthening participation by and support from non-governmental groups.

Since the inception of the Pocso Act, there has been an increase in reporting of child sexual abuse cases. On the other hand, there have been concerns raised about the criminal justice delivery mechanism, quality of investigation, availability of support person, medical investigation, legal aid, compensation to victims, and transparency in preparation of record by forensics science laboratory.

According to the recent report on Pocso by the registrar of the Supreme Court, there are 36% of cases where time taken for completion of investigation is more than six months (in 20% cases, it is more than a year). In 49% of the cases, it took more than a month for the police to deposit samples with forensics laboratories. Inexcusably, there are 96% cases without a support person, and 99% cases in which interim and final compensation is not provided. Moreover, two-thirds of the cases are pending trial for more than a year.

Child survivors are already traumatised and subjected to secondary victimisation due to the existing faulty justice delivery mechanism. Handling the cases of child survivors by non-specialised or inexperienced key stakeholders and institutions — such as investigation officer, medical officer, support person (Child Welfare Committee), counsellor/psychologist/mental health expert (District Child Protection Unit), Juvenile Justice Board, Legal Aid Counsel (DLSA) and Special Public Prosecutor — makes this process cumbersome and painful for child survivors and their families. This often results into frequent adjournment of children’s testimony, delay in disposal of cases, or survivors turning hostile.

Considering the existing status of Pocso cases, it is necessary to bring improvement in delivering justice to survivors in a child-friendly manner, and within the stipulated time. It can be achieved by building capacities of the key stakeholders and institutions as provisioned under the Pocso Act 2012. Therefore, it is essential for the concerned authorities to invest collectively in creating a cadre of district- and state-level professionals, covering the aforementioned key stakeholders for expediting the justice delivery process in a sensitive manner.

The selection and performance appraisal processes for these professional stakeholders must be scrutinised and reviewed periodically to ensure accountability, transparency and effectiveness of service delivery. These key stakeholders have to be acquainted with good practices through their peers who have achieved results in such cases. They should be exposed to stress management techniques and related trainings for their healthy work-life balance. A child sensitive lens in their day-to-day working will build trust with the survivors and their families, and may also help reduce their trauma. The stakeholders’ orientation, experience, knowledge and skills in accordance to the mandated guidelines as well as the child-friendly interventions during the pre-trial and trial process make the system robust and helps in speedy trial and reduction of pendency of cases.

The concerned government authorities, along with child-friendly FTSC, should leverage appropriate technology for tracking the cases in real time. The concerned departments should pool in resources to focus on developing a cadre of professionals to support child survivors. They may allow interns or junior officers to accompany or support key stakeholders during the investigation and trial process. They should engage with local non-governmental organisations and leverage social media to create awareness among masses about Pocso Act. A professional, skilful and passionate human resource is the need of the hour. It will strengthen the judicial process, and help child survivors seek justice in a child-friendly manner.

Criminalisation of even consensual sex between adolescents obstructs access to safe abortion for girls

Source: Times of India dated 19.10.2019

-- Vrinda Grover (Advocate, Supreme Court of India)

Unsafe abortion is the third leading cause of maternal mortality in India, leading to about 10 deaths every day. ‘The incidence of abortion and unintended pregnancy in India, 2015’ study records that of the 15.6 million abortions in 2015, only 22% were conducted in health facilities, whereas an overwhelming 78% abortions were done outside health facilities. Adolescent girls, in the age group of 16-18 years, are left at the mercy of life-threatening pregnancy termination methods. A 2010 facility based study discloses that 20-30% of abortion seekers were unmarried young women and adolescent girls; and 16.7% of them were victims of sexual abuse.

Significantly, this life endangering vulnerability is abetted by the law. Section 19(1) of the Protection of Children from Sexual Offences (POCSO) Act stipulates mandatory reporting of all sexual offences against a child to the law enforcement authorities, and failure to report the same entails punitive consequences. This blanket legislative compulsion to inform authorities, makes no exception for adolescent girls nor for health professionals, thereby jeopardising the life and reproductive health of adolescent girls.

NFHS-4 (2015-16) data confirms that adolescents are sexually active in India. The legislative diktat of POCSO treats any sexual activity with a person under 18 years as a crime. Even consensual sex between adolescents is criminalised. This strictly penal approach rejects the evolving sexual capacities and consensual sexual interactions between adolescents. Ironically, the Juvenile Justice law recognises 16-18 year-olds as “deliberative intentional adults” to prosecute them as adults for heinous crimes.

The 1971 Medical Termination of Pregnancy Act governs the circumstances under which comprehensive abortion can be provided. To provide abortion services to a girl under 18 years, the law requires the written consent of a guardian but casts no obligation on the doctor to inform the police. POCSO, however, superimposes mandatory reporting on health professionals, placing physicians and psychiatrists in a particularly conflicted position, about how and when the doctor must inform the police.

Rule 5 of POCSO prescribes that the doctor rendering emergency medical care shall not demand any prior legal requisition; shall protect the privacy of the child and shall attend to the needs of the child including advice on pregnancy and emergency contraception. The Monitoring Guidelines state that it would suffice to give information to the police official attached to the hospital, and a medico legal certificate made to the police. The guidelines also state that providing medical care is the first duty of health professionals, while reporting is a secondary duty.

Doctors providing abortion services are confronted with a professional and ethical dilemma. The primary duty of the doctor is to provide medical treatment and the efficacy of this treatment rests on maintaining confidentiality and trust of the patient, underpinned by securing informed consent. Thus, doctors have to meet the competing demands of the law and their professional obligation to provide healthcare.

Doctors have reported that the POCSO statutory directive has a chilling effect in providing healthcare. Many doctors continue to prioritise their duty by first providing safe abortion services and also comply with the law by informing through either an MLC, or a subsequent report to the police. However, doctors also report many instances where adolescent girls seeking pregnancy termination have abruptly left upon learning that the police would be compulsorily informed. The situation is more egregious when the pregnancy is caused by sexual assault within the family and the survivor is unable and unwilling to approach the police. Irrespective of the marital status of the adolescent girl seeking abortion, the doctor is required to inform the police, as law deems them all to be a consequence of rape.

There can be no dispute with the objective of ending child sexual abuse and there is merit in imposition of mandatory reporting in institutional settings. However, in the context of access to safe abortion, universal mandatory reporting, is a blunt instrument, not in the best interest of the health or autonomy of adolescent girls.

Let’s pause and consider the state of the criminal justice system that this mandatory reporting will trigger. The Supreme Court on July 12, 2019, registered a suo motu writ petition titled, ‘In Re: Alarming rise in the number of reported child rape incidents’. Responding to the inordinate delay in the investigation and conclusion of POCSO trials, the court issued directions. Is it surprising then that the criminal justice system does not inspire confidence in the victims of POCSO offences?

The criminalisation of all sexual activity between adolescents under POCSO, coupled with mandatory reporting directive, operates as a barrier for adolescent girls accessing safe abortion services. Respecting “the best interests of the child” mandate, POCSO should prioritise enabling adolescent girls to access safe abortions and not fetter health professionals with mandatory reporting.

What HC suggested on age of consent and age gap, and the implications

Article in the Indian Express dated April 30, 2019 regarding the POCSO Act by Kaunain Sheriff M. and Abantika Ghosh. Link to this article:

http://epaper.indianexpress.com/c/38960168

After stricter law on child rape, death sentences hit two-decade high

Article in the Indian Express dated January 25, 2019 regarding the Statistical information on death sentences and POCSO Act  by Amrith Lal. Link to this article:

http://epaper.indianexpress.com/c/36106190

Guilty till proved innocent

Article in the Indian Express dated January 3, 2019 regarding the amendment in the POCSO Act, 2012 by Arundhati Katju. Link to this article:

http://epaper.indianexpress.com/c/35442130