Can POCSO Victim's Right To Compensation Be Forfeited To Protect Right To Privacy? Kerala High Court To Consider

After a Sessions Court in Kerala sought details of a POCSO victim given in adoption so as to remit her compensation, the High Court is set to consider whether the right to compensation of the victim ought to be forfeited in order to protect her legal right to privacy.

The issue was brought to light by Advocate Parvathy Menon, Project Coordinator of Victim Rights Centre at KeLSA before Single bench of Justice K. Babu in a suo motu case pertaining to collection of DNA sample of children born to POCSO and rape victims for strengthening the case of rape.

Menon, also the amicus curiae in this matter, drew attention of the bench to a Palakkad Court's order directing the convict under POCSO Act to pay Rs. 25,000 fine which was to be deposited in the victim's name. Since the victim was given in adoption through Anand Bhavan, the prosecution was unable to furnish her details for the purpose of deposit. It is in this backdrop that the Sessions Court had sought the victim's details in a sealed cover.

"It's a very strange case...whether the victim can forfeit her right to compensation vis-a-vis the right to privacy. That issue also may be considered by this Court," she submitted.

The Court has now directed Menon to submit a report on this issue by August 21, the next posting date.

The Suo Motu Case

Last month, the High Court had stayed various lower court orders directing the collection of blood samples of children of rape and POCSO survivors for DNA testing.

The order was passed in a suo motu case that was initiated on the basis of a report submitted by Advocate Menon, which stated that such Orders were in conflict with Regulation 48 of Adoption Regulations, 2022, which stipulates confidentiality of records to be maintained in case of adopted children by all the agencies and authorities that are involved in the same. The report emphasized that neither Section 375 IPC which defines the offence of 'rape' nor the various criminal law amendments envisage the conduct of DNA test on the children of rape victims in order to prove the offence of rape.

Menon had further stated in her report that orders to collect DNA samples from such children who have been adopted and already blended well with their adoptive families would affect their emotional state of mind, and could even defeat the very purpose behind adoption.

"An adopted child cannot be at any point of his/her/their growth, be violated of his/her/their privacy," the report emphasized.

Case Title: Suo Motu v. State of Kerala

Case Number: Crl.MC 5136/ 2023