16-18 Year Olds In Romantic Relationships Know What They're Doing, Why Should We Prosecute Them: Justice Madan Lokur On POCSO Cases

Justice Madan B. Lokur, former judge of the Supreme Court, on Saturday said that there is a need for evolving a separate procedure for children while dealing with POCSO cases and also for the judiciary to engage in the process of case management to expedite decisions in such matters.

Justice Lokur was speaking at an event organized by Delhi Commission for Protection of Child Rights (DCPCR) along with 'Haq: Centre for Child Rights' on the topic "Justice, Trial, Proceeding & Pendency of POCSO Cases."

Justice Lokur began the address by recalling the time when he was assisting the Law Commission of India some years ago on the aspect of "judicial impact assessment", the purpose of which was to ascertain the impact of a legislation on the justice system.

However, he said, the exercise could not be completed. "Unfortunately, nothing happened. It is one of those reports lying on some shelf somewhere," the former judge said.

He added: "If that report had been implemented and had there been a judicial impact assessment, we would have known how many courts are required."

POCSO Act

Emphasizing that the law states that POCSO cases must be decided within a year, Justice Lokur referred to the studies done by the NGO Haq and Vidhi Centre for Legal Policy which showed that such cases are being decided in 1 year or 1.5 years.

"If they can be decided in 1 year or 1.5 years then why can't they be decided in less than one year? It's possible. The Muzzafarpur (shelter home) case…dealt with 34 girls sexually exploited for years, that case was decided in less than one year. So it is possible," the former judge said.

He added: "In that sense, if the figures are correct, POCSO has been working fairly well in getting them decided within a year and a half but it can be brought down and it should be brought down so that we're able to decide these cases in less than a year."

Justice Lokur further said that the issue of pendency of POCSO cases can be dealt with by the judiciary by following the process of case management. For this, he gave examples wherein two POCSO cases were decided within a year and the accused were convicted.

"There are two instances I can think of, one was a trafficking case in Andhra where large number of accused persons were there and a large number of girls were being trafficked. The case got decided within less than a year and the persons were convicted. The Muzzafarpur case again was decided in less than a year, large no of persons convicted, large no of victims...that is case management," Justice Lokur said.

Procedure and Juveniles 

On the aspect of legal procedures followed in such cases, Justice Lokur questioned if the procedures applicable to an adult must be applied to cases involving minor children. He said:

"Are we supposed to have same procedure for every case? Can we not look at streamlining the procedures? Is it not possible? I think it is. The procedures that we have are the ones that are actually causing the problem."

He added: "…but do we actually need those procedures when we are dealing with children for example..a child cannot give a bail bond, a child cannot stand as a surety.. a child cannot sign a vakalatnama in favour of lawyer...but when you're dealing with cases pertaining to children, why do you follow the same procedure which you're following for adults? You got separate courts, have a separate procedure."

Special Courts

Calling the constitution of special courts a "knee jerk reaction", the former judge said that after the creation of special courts, the idea of constituting fast track courts and special fast track courts came up, adding that the process "is not going to end."

"Fast-track courts were told that they decide so many cases within a month.. Allahabad UP fast tracked many cases. The result was the appeals were filed and the Allahabad High Court was completely choked. Now you have special fast-track courts, this is not going to end. You've to look at it in a broader manner and see whether you can devise some procedure by which justice can be expedited," he said.

POCSO Act and Teenage Relationships

Talking about the age of adolescence, Justice Lokur also said that while the Juvenile Justice Act has a specific provision for children between the age of 16 to 18 years, "why can a similar provision or the idea be not imported in the POCSO Act."

"With regards to the procedure, you have to look at the adolescence, 16-18 years, what are called in Delhi as love cases where persons who are 17 years old or the girl is 17 years old or the boy is 19 years old and all that, you've to look at that. In Juvenile Justice Act, you have a special provision for 16-18 years, can we not import that provision or that idea into POCSO?" Justice Lokur said.

He added: "So many of these cases where 17 years old boy and girl are involved in a romantic relationship...they know what they're doing. If they know what they're doing, they are aware of the consequences. Why should you prosecute them? When you talk about decriminalizing homosexual activity, how about decriminalizing this? That's also possible."

Ending the keynote address, Justice Lokur also emphasized on the aspect of victim compensation and the need to increase the same, keeping in view the mental health issue on the children.

"You need counsellors. You need persons who can help the victims. Just giving them 5 or 10 lakhs, according to me, is not the answer. Second, even that 5 lakhs is not given on time. So you have to wait for maybe 6 or 4 or 2 years. But that's not the answer," he said.