Supreme Court Seeks Counsellor's Aid To Ascertain If POCSO Offence Victim Took Informed Decision By Choosing To Reside With Accused

In a case where a victim of a POCSO offence chose to reside with the accused, the Supreme Court on Thursday (May 9) said that there was a need for counselling by a professional psychologist to understand if the woman took an "informed decision."

The Court was hearing a suo motu case ("In Re : Right to Privacy of Adolescents"), which was taken over a judgment of the Calcutta High Court in which certain remarks were made regarding the sexual conduct of adolescents, particularly teenage girls. The appeal filed by the State of West Bengal challenging the acquittal of the accused was also listed along with the suo motu case.

The bench of Justices AS Oka and Ujjal Bhuyan expressed that aid from clinical psychologists will help the Court to get a clearer picture of the social setting under which the minor victim made her life decisions. The minor in the present case had begotten a child from her relationship with the accused partner at the age of 17 years and wished to reside with him since she had been ostracized and disowned by her parents and community at large. 

During the hearing, the counsel for the accused reiterated that the victim had already stated earlier her desire to stay with the accused. Reverting to this, Justice Oka explained that it was essential to seek an expert's intervention in the present issue to get a holistic understanding of the ground reality. The bench expressed that the minor victim, because of the constant environment of victim shaming and social stigma, may have decided to stay with the accused under a feeling of hopelessness. It may be that the victim is unaware of the legal remedies under POCSO and possible future opportunities she may have as a matter of right. 

"When a trained psychologist comes into the picture, sometimes we get the real truth. She (victims) is in an environment, so that environment has an impact on her, she may feel she is in such a helpless situation that she has no other choice." 

On the earlier occasion, the Court,in order to ensure that the victim made a well-informed decision for herself and the future of her child, was of the view to allow her a period of introspection with the help of state support. The bench added that she needed to interact with social counsellors or workers in the relevant field to be able to ascertain her true self.

"Maybe when she stays away, there is some interaction with some experts for example TISS (Tata Institute of Social Sciences), social scientists etc who will be able to assist us to take a correct decision," opined Justice Oka.

During the previous hearing, Justice Oka had expressed that the very purpose of legislation like POCSO which came into effect in 2012, was to reform the society in terms of children's well-being. A welfare legislation cannot be overlooked just because the rural and remote areas of the country have refused to acknowledge the presence of such a law.

"Look at the object of POCSO, the object was to bring a change in the society. So now today can we hear an argument that POCSO maybe 20 years old but at grass root level POCSO is meaningless? In the sense large population is acting contrary to POCSO and therefore we have to ignore it?"

During the hearing today, Senior Advocate Ms Madhavi Divan, the amicus curiae in the case,  suggested it would be apt to have the minor interact with the clinical psychologist under the District Mental Health Programme run by the State of West Bengal. She, however, pointed out that it would be crucial for the government counsellor to take an objective view of the scenario, considering that the state is also party to the present proceedings. The report of the counsellor would be submitted to the court in sealed covers. 

Representing the State of West Bengal, Senior Advocate Mr Hufeza Ahmadi, agreed to the above proposal and submitted that the state would be ready to make endeavours to facilitate the counselling. Additionally, Mr Ahmadi suggested that it should be left to the clinical expert to observe the victim's surroundings and decide whether the counselling should take place within the home environment or at the Mental Health Department itself. 

Case Details : IN RE: RIGHT TO PRIVACY OF ADOLESCENTS SMW(C) No. 000003 - / 2023