POCSO Act | State Must Provide 'Support' Persons' For Child Victims; It Can't Be Left To Parents' Discretion: Supreme Court

The Supreme Court has underlined that the State has the obligation to provide 'support persons' as per the Protection of Children from Sexual Offences (POCSO) Act 2023  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, the Court stated.

A bench comprising Justices S Ravindra Bhat and Aravind Kumar observed :

"This Court is of the opinion that the need for support person should not be left to the discretion of the parents; in all cases, the option of availability of support person and right to claim the assistance of such support person should be made known to the victims parents. The State has an obligation to provide support persons to POCSO victims which cannot be made optional. Unless there are good reasons recorded by the CWC in its order, the familiarity of support persons is mandatory."

Previously, on August 18, the bench had passed an order emphasising the importance of appointing 'support persons' by the State for child victims and had directed the NCPCR to file a status report outlining the progress of all the States in framing guidelines as per Section 39 of the POCSO Act (Guidelines for child to take assistance of experts, etc.).

The Court, in its recent order (October 9), directed the NCPCR to consult all the State Governments and the Government of Union Territories and formulate model guidelines, based on which States and Union Territories may frame their rules in respect of support persons under Section 39 of the POCSO Act.

It was suggested that initially NCPCR may formulate draft guidelines which may be circulated to all the States and after due consideration of their comments and suggestions, the guidelines may be finalised.

It may be noted that the present petition has been filed by Bachpan Bachao Andolan which had raised issues related to protection provided to victims under the Protection of Children from Sexual Offences (POCSO).

POCSO Rules, 2020 define a 'support person' as “someone assigned by a child welfare committee to render assistance to a child during the process of investigation and trial, or any other person assisting a child pre-trial or during the process of a trial pertaining to the offenses under the POCSO Act, 2012.”

Perusing the documents, the Court noted that the need for support person should not be left to the discretion of the parents; in all cases, the option of availability of support person and right to claim the assistance of such support person should be made known to the victims parents.

At the end of the order, the Court also recorded certain relevant factors to be taken into consideration by NCPCR during framing of the guidelines, while also making it clear that these factors are exhaustive. These include:

1. requiring a uniform standard of education of support persons for which the minimum qualification may be graduation with relevant experience in child psychology, social work or child welfare, etc.;
2. the general practice of limiting engagements of support persons to number of cases to a particular time limit of three years or five years should be avoided. A suggestive uniform policy should be framed eventually leading to encadrement of such persons in the concerned Ministry at the appropriate stage;
3. the reasonable remuneration to be paid to the support persons commensurate with the work and functions to be discharged by them;
4. creation of an All India Portal which will be accessible to all individuals and organizations such as JJBs and individual CWCs, which can list out the details of all support persons available in the concerned States and Union Territories; and
5. a panel to be maintained by each State in respect of NGOs and support persons, whose services may be availed by the CWCs/JJBs.

Imperatively, the timeline for finalising the guidelines and filing the same in the Court is eight weeks.  

Case Title: WE THE WOMEN OF INDIA v. UNION OF INDIA & ORS., Writ Petition(s)(Civil) No(s).1156/2021

Citation : 2023 LiveLaw (SC) 892

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