National Consultation On POCSO: Highlights Of Speech Delivered By CJI Justice DY Chandrachud
Prominent dignitaries present at the inaugural session included CJI Justice DY Chandrachud, Smriti Irani, Minister for Women and Child Development, Justice S. Ravindra Bhat, Chairperson of the Supreme Court Committee on Juvenile Justice, and Cynthia McCaffery, Representative, UNICEF India.
The Chief Justice delivered the key note address on National Annual Stakeholders Consultation on Child Protection, a two day national consultation on the Protection of Children from Sexual Offences (POCSO) Act, 2012 that started on Saturday, 10 December.
Children: Close to My Heart
"The issues surrounding rights of children are close to my heart. Everything that we discuss will have so much of contemporary significance, which all of us do, in different capacities as stakeholders in the system."
Supreme Court Committee on Juvenile Justice & COVID-19
"At the outset, I must congratulate the Supreme Court Committee on Juvenile Justice headed by Justice S. Ravindra Bhat for conceptualizing and organizing this Conference. The Supreme Court Committee on Juvenile Justice, aimed at protecting minors during the COVID-19 pandemic when it monitored the action being taken to secure the safety of children who were orphaned due to the pandemic."
Quotes Nelson Mandela
"Nelson Mandela on the occasion of launch of the Nelson Mandela Children's Fund said, 'There can be no keener revelation of a society's soul than the way in which it treats its children'".
India: No Exception to Sexual Violence
"World over, children are the voiceless victims of physical, emotional and sexual violence and India, is no exception to this phenomenon. The Enactment of POCSO Act in 2012 was a watershed moment in the history of child rights in India. The POCSO finally provided a specialised mechanism for the adjudication of sexual crimes concerning children, while prioritising 'best interest' of the child. It's a gender neutral legislation which provides for in camera trials, support person for the child, child friendly cross examination practices, and protection of the identity of the child."
No Excessive Powers to Police
"The families of child victims are immensely hesitant to file a complaint with a police. So we must be very careful about entrusting excessive powers to the Police. The slow pace of the criminal justice system is undoubtedly, the reasons for this but other factors play a significant role as well."
Culture of Silence: Two Harmful Stereotypes
"Issues concerning the sexual abuse of children continue to be plagued by immense stigma. There exists a culture of silence, which stems from shame and conceptions of family honour, which we too so often confront in our courts."
"Two harmful stereotypes contribute to entrenching this culture of silence. First, the stereotype that only a girl child can or is likely to be sexually abused. The second stereotype is that the perpetrator is a stranger."
Boys: Equal Risk of Sexual Abuse
"Research has consistently demonstrated that both girls and boys are at equal risk of sexual abuse and that the perpetrator is known to the victim, in an overwhelming number of cases and may be an immediate family member or caretaker or neighbour. The sexual abuse of children therefore remain a hidden problem."
Guardians: Guard the Rights
"If the parents of the child do not wish to report the issue, the child is left without a voice and can exercise little agency. But then there are children who have no parental support, they are pretty much left on streets, where they have no protectors. In that sense, the guardian of the child, literally, guards the rights of the child."
Mandatory Reporting and Acess to Healthcare
"While the mandatory reporting requirement in the POCSO is aimed at addressing the issue of under reporting. It is essential to ensure that this does not prevent access to healthcare. Therefore, in my judgment for the Supreme Court, I recognise this principle in 'X vs Principal Secretary, Health and Family Welfare, Dept of NCT of Delhi' where we ruled that registered medical practitioner need not immediately disclose name of the minor to the authorities. In case where minor seeks abortion, but doesn't wish to be involved with criminal justice process until access to healthcare is received."
Sexual Violence: Life-long Implications
"Exposure to sexual violence at an early age leads to severe trauma and impairs cognitive development. It has lifelong ramifications and limits the fullness with which the child could have lived his life. Beyond the direct and profound cost of victims, it affects their communities and disrupts social cohesion and increases the burden on health social welfare and criminal justice systems. The Delhi Commission for Protection of Child Rights found that there is a high correlation between child rape and dropping out of school."
'Safe' and 'Unsafe' Touch
"The long lasting implications of child sexual abuse make it imperative for state and other stakeholders to create awareness regarding the prevention of child sexual abuse, it's timely recognition and remedies available in law and otherwise. Children must also be taught difference between the 'safe' touch and 'unsafe' touch. While this was previously coached as the good touch and bad touch. Child rights activists have urged to use word 'safe' and 'unsafe' because the word 'good' and 'bad' have moral implications, especially for children, and may prevent them from reporting abuse."
Professional Counselling Services
"The use of professional counselling services must also be encouraged, especially because many parents are unaware that this can help the child deal with trauma."
Best Interest of Child Must be Prioritized Over 'Honor of Family'
"Above all there is an urgent need to ensure that so called honor of the family is not prioritized over the best interest of the child. The state must encourage families to report cases of abuse even where the perpetrator is a family member."
Executive Must Join Hands With Judiciary
"It is an unfortunate fact that the manner in which criminal justice system functions, sometimes, compounds the victims trauma. The executive must therefore join hands with judiciary to prevent this from happening. The Research project conducted by Centre for Child Rights and Juvenile Justice of the National Law University, Delhi reveals that judges assigned to the POCSO Courts reported insufficient Infrastructure and low availability of trained support personnel. Many FIRs which were evaluated in the research project invoked the incorrect provisions of the POCSO Act which concerned less serious offences than the one which was complained of."
Timely Financial Compensation
"Finally, compensation of financial assistance was provided in a minority of cases. The revelations of this report suggests an urgent need for all branches of the state to ensure that the police and support personnel are properly trained and adequate Infrastructure is available and that compensation is disbursed in a timely fashion."
Vulnerable Witness Deposition Centres
"To this end, model guidelines for vulnerable witness deposition centres were circulated to all the High Courts as directed by the Supreme Court in Smruti Tukaram Bagade vs State of Maharashtra. Vulnerable witness deposition centres are in process of being set up across the country. The installation of these centres is in line with United Nations Guidelines on Justice in matters involving Child Victims and Witnesses of Crime, 2005, which recognises that child sensitive procedures such as these centres forms a part of child's right to be protected from hardship during the justicing process."
Children May Express Abuse Differently
"As judges we must also remember, that children may not have same vocabulary as adults do and may not be able to discuss the details of abuse in the same way that adults do. But this doesn't mean that they do not know what the perpetrator has done to them. Children of different ages may express then differently. But the essence of what they are communicating must be understood especially during the examination-in-chief and cross examination. Their contact with criminal justice system must suit their needs as a vulnerable class of people."
Past Experience as Judge of Bombay High Court: Need for Collaborative Partnership
"Years ago, when I was a judge of the Bombay High Court, we had report in a daily newspaper which spoke of serious acts of sexual abuse of children who were lodges in private children's home. We appointed a very senior IAS officer to investigate and she would come back and report to us periodically. And over a conference table, because we thought, we shouldn't hold these proceedings in a formal environment of a Courtroom. She explained to us how she could draw out the children, play with the children, talk to them, paint with the children, take them out in the garden, speak to the children over a length of time before the children actually opened out and spoke about the nature of sexual abuse that they had faced. Some of the photographs which she showed us during the course of these hearings were indeed absolutely shocking to us. I do believe that therefore, this collaborative partnership between different stakeholders in the process can really take us a long way in alleviating the problem which we perceive."
Technology: A Useful Tool in Children Friendly Courts
"Technology may also provide a useful tool in this endeavour. Video Conferencing facility from within the court room or otherwise can be used to put children at ease while testifying. Child friendly courts have deployed other mechanisms such as one way mirrors, separate entrances for the child and their parents, and child friendly waiting rooms. It is my hope that every court in the Country can some day call itself a child friendly court."
NCRB Data: Need for Specialised Court Infrastructure
"The NCRB data for 2021, indicated that 53,873 cases were registered under the POCSO. 61.9% cases were cases of rape. The increase in number of POCSO courts and in the number of public prosecutors must be matched by specialised training and attended in court infrastructure. Very often when we have a special legislation, we increase the number of courts and judicial officers, but that in itself is not going to be adequate. Unless particularly an area as sensitive as this, we attend to other Infrastructural issues including psychological support and counselling and expert care within the precincts of the courtroom."
Criminal Justice System: A Re-Victimisation Process
"I have already spoken about dangers of re-victimisation. Re-victimisation can take place and does take place at every step of our criminal justice administration. It takes place at the stage of investigation, that's why I spoke about the dangers of entrusting too greater powers to Police to decide as to whether a crime has or has not been committed or whether a cognizable offence should or should not be registered. Because re-victimisation can take place at the stage of investigation itself."
Re-Victimisation: During and Post Trial
"Re-victimisation takes place during the course of trial itself. By the kind of procedures or practises which we follow in the course of examination or cross examination. Re-victimisation takes place in terms of ambient environment which we create in these trials. Re-victimisation takes place in the course of rehabilitation. If our rehabilitative techniques are not sufficiently geared to be sensitive, re-victimisation can take place during course of rehabilitation. Re-victimisation takes place sheerly by the nature of the delay itself that is involved in the process."
Way Ahead: Right Area of Focus
"We must looking forward to think about innovative means and move away from conventional methods, of course consistent with the rule of law. The curriculum of schools, police and judicial academies have to be evolved and we must have a national model, particularly for the state judicial academies. Child psychology and techniques for communication must be focused upon when we train our own judges and public prosecutors."
Consenting Adolescents & POCSO: A Difficult Question
"Once the topics for panel discussions today is with judgments of POCSO Courts on "romantic cases" or where consenting adolescents engage in sexual activity. As you are aware that POCSO Act criminalises all sexual activities for those under the age of 18 regardless of whether consent is factually present between the two minors in a particular case. Because the presumption of law is that there is no consent in the legal sense below the age of 18. In my time as a judge, I have observed that this category of cases pose difficult questions for judges across the spectrum."
Need for Consideration by Legislature
"There is a growing concern surrounding this issue, which must be considered by the legislature in view of reliable research by experts in adolescents healthcare. I think I should leave this topic right there because it's something which is very vexed."