State Should Amend Kerala Victim Compensation Scheme And Enable POCSO Victims To Claim Compensation For 'Sexual Harassment': High Court

Justice Kauser Edappagath, while upholding the compensation given to the sexual harassment victims held that a beneficial legislation or scheme must not distinguish between victims. The Court opined that the existing schemes are inadequate for compensating victims of sexual abuse under the POCSO Act and held thus:

“….it is obligatory on the part of the State Government to formulate a comprehensive victim compensation scheme specifically for the victims of sexual offences under the POCSO Act or to make necessary amendments in the existing Kerala Victim Compensation Scheme, 2017 (As amended in 2021) incorporating a separate Schedule applicable to sexual offence victims under the POCSO Act. The State Government shall take necessary steps in this regard forthwith.”

The Kerala Victim Compensation Scheme, 2017 was introduced under Section 357A -Victim compensation scheme of the CrPC. There are 22 injuries mentioned under the schedule of the scheme. The term sexual assault is given as an injury in the schedule and not sexual harassment. In the present matter, Special Court, Alappuzha directed the District Legal Services Authority to pay interim compensation of Rs. 50,000 each for two victims of sexual harassment under POCSO Act.

The petitioners (Kerala State Legal Services Authority and District Legal Services Authority, Alappuzha) challenged the above order stating that the offence of 'sexual harassment' as given under the POCSO Act is not mentioned as an injury under the schedule of the Scheme. Thus, they averred that sexual harassment victims cannot claim compensation under section 357A of CrPC, POCSO Act, POCSO Rules, Kerala Victim Compensation Scheme.

K.K.Dheerendrakrishnan, Amicus Curiae appointed by the Court submitted that the scheme being a beneficial legislation, the term sexual assault should be liberally interpreted to include sexual harassment also.

The Court stated that inserting Section 357A CrPC in the year 2008 is a ‘laudable legislative effort’ by the government to provide compensatory justice to the victims who have suffered loss or injury and require rehabilitation. The court noted that the benefit of the compensation is extended to victims even in cases of acquittals or where the offender is not traceable or identifiable. It noted thus:

“State has a humanitarian responsibility to assist crime victims and that the assistance is provided because of the social conscience of its citizens and as a symbolic act of compassion. By incorporating Section 357A, the legislature gave statutory acknowledgement to the constitutional duty of the State to compensate and rehabilitate victims of crime or their dependants in addition to compensation payable by a convict under S.357, Cr.P.C. and enjoining upon the State the duty to formulate and fund appropriate Victim Compensation Schemes.”

It is in this backdrop that the Court considered whether the Kerala Victim Compensation Scheme has to be extended to child victims of sexual harassment also. The court noted that Special courts are competent to grant interim or final compensation to victims of sexual abuse under Section 33(8) of the POCSO Act and Rule 9 of the POCSO Rules. And this payment has to be made by the State government under the present scheme. The court noted that minor victims of sexual abuse can seek compensation under Chapter I of the scheme which applies to all the victims or dependents who have suffered injury because of a crime. Chapter I is gender neutral and is not confined to sexual assault victims alone.

Further, the Court observed that the term sexual assault has to be understood in terms of its general meaning and held: “Thus, the term ‘sexual assault’ found in either of the Schedules of the Scheme has to be construed as any sexual offence against a victim, including sexual harassment.” It noted that POCSO Act is a self-contained comprehensive legislation for the protection the best interests of the children and held thus:

“The POCSO Act is a gender-neutral legislation enacted with the laudable object of protecting children from offences of sexual assault, sexual harassment, and pornography. It is imperative that the law operates in a manner in the best interest and well-being of the child. The duty of the Special Court is not only the protection of children from sexual offences and to convict the accused where the accused is found guilty, but also to grant compensation…”

Therefore, Court said the petitioners cannot contend that the definition of sexual assault as given in the POCSO Act does not include sexual harassment and prevent the victims from getting compensation.

The Court held that the special court is competent to grant compensation to child victims of the sexual assault, penetrative sexual assault, aggravated sexual assault, aggravated penetrative sexual assault, sexual harassment or where there is use of child for pornographic purpose irrespective of the nature of offence committed. The is also because neither the POCSO Act nor the POCSO Rules state that only sexual assault victims are eligible for compensation. Thus, the Scheme cannot be understood to restrict the benefit of compensation only to the sexual assault victims, Court said.

Further, the Court referred to the directions issued by the Kerala High Court in Abhishek v. State of Kerala (2020) for improving the justice delivery system under the POCSO Act. The Court noted that the state government has not taken any effective steps for ensuring compensation to child victims of sexual offences. Even the Kerala Victim Compensation (Amendment) Scheme 2021 is inadequate for compensating victims of sexual abuse under the POCSO Act because certain chapters and schedules of the scheme are only applicable to women victims of other crimes except under the POCSO Act, it noted. The Court held that the state government has to make necessary amendments to the scheme to make it applicable to child victims of sexual offences also.

The court dismissed the petition and upheld the order of the special court granting compensation to the child victims of sexual harassment.

Amicus Curiae: Dheerendrakrishnan

Counsel for the Petitioners: Roshan D. Alexander

Additional Public Prosecutor: Sri. P. Narayanan

Case title: Kerala State Legal Services Authority v. state of Kerala

Citation: 2023 LiveLaw (Ker) 366

Case Number: OP(CRL.) NO. 710 OF 2022

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