Supreme Court Annual Digests 2023- Protection of Children from Sexual Offences (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) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Act, 2012 - POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6, in its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence. (Para 12) State of U.P. v. Sonu Kushwaha, 2023 LiveLaw (SC) 502

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) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Act, 2012 - The social environment around the victim child may not always be conducive to the victim's rehabilitation. Only the monetary compensation is not enough. Only the payment of compensation will not amount to rehabilitation in a true sense. Perhaps the rehabilitation of the girl victims in life should be part of the “Beti Bachao Beti Padhao” campaign of the Central Government. As a welfare State, it will be the duty of the Government to do so. (Para 16) 2023 LiveLaw (SC) 875

Protection of Children from Sexual Offences Act, 2012 - The State needs to ensure that the children who are the victims of the offence continue with their education. (Para 16) 2023 LiveLaw (SC) 875

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) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Act, 2012 - Whenever a child is subjected to sexual assault, the State or the Legal Services Authorities should ensure that the child is provided with a facility of counselling by a trained child counsellor or child psychologist. It will help the victim children to come out of the trauma, which will enable them to lead a better life in future. (Para 16) 2023 LiveLaw (SC) 875

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) 2023 LiveLaw (SC) 667

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) 2023 LiveLaw (SC) 667

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) 2023 LiveLaw (SC) 667

Protection of Children from Sexual Offences Act, 2012; Section 6 - Appellant concurrently convicted under Section 6 of the POCSO Act as well as Section 10 of the Prohibition of Child Marriage Act - Conviction set aside. 2023 LiveLaw (SC) 538

Protection of Children from Sexual Offences Act, 2012; Section 6 - Accused had put his penis into mouth of the victim aged about 10 years and discharged semen - The accused has committed an offence of aggravated penetrative sexual assault as he has committed penetrative sexual assault on a child below twelve years. (Para 7-11) 2023 LiveLaw (SC) 502

Protection of Children from Sexual Offences Act, 2012; Section 94 - Juvenile Justice (Care and Protection of Children) Act, 2015; Section 94 - Wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the Juvenile Justice Act - School transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandate - Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. 2023 LiveLaw (SC) 538

Protection of Children from Sexual Offences Act, 2023 – the State has the obligation to provide 'support persons' as per the POCSO Act to child victims of sexual offences and that the appointment of support persons cannot be made optional. The need for support persons should not be left to the discretion of the parents of the child victims. (Para 3) 2023 LiveLaw (SC) 892

Protection of Children from Sexual Offences Act, 2023 - There is a need for comprehensive guidelines regarding the engagement of support persons in child welfare cases. The guidelines, to be finalized within eight weeks, are expected to consider various factors, including the establishment of a uniform standard of education for support persons. The court discourages the prevalent practice of limiting support persons' engagements to a specific time frame and emphasizes the importance of providing reasonable remuneration for support persons. Additionally, the guidelines propose the creation of an All India Portal and the maintenance of a panel of NGOs and support persons. (Para 5) We the Women of India v. Union of India, 2023 LiveLaw (SC) 892

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) 2023 LiveLaw (SC) 667

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) 2023 LiveLaw (SC) 667

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) 2023 LiveLaw (SC) 667

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) 2023 LiveLaw (SC) 667

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) 2023 LiveLaw (SC) 667