By Prof Upendra Baxi
In an admirably succinct opinion, Dr Justice Kauser Edappagath of the Kerala High Court had to resolve an unusual problem. The state created a Special Court for Trial of Offences Relating to Atrocities Against Women and Children, also including POCSO cases (Additional Sessions Court-I), Alappuzha. He passed two orders relating to offences of sexual harassment, directing the District Legal Services Authority, Alappuzha, to pay an interim compensation of Rs 15,000 to the victims in two cases pending before it.
Lo and behold, the Kerala Legal Services Authority and the District Legal Services Authority, Alappuzha, the statutory authorities entrusted with the power to give compensation to the victims under the Victim Compensation Scheme under Section 357A of CrPC as well as under Section 33(8) of the POCSO, challenged these orders. They said that “sexual harassment” is not included as an injury in the Schedule of the Kerala Victim Compensation Scheme, 2017, and accordingly, the victims were not eligible for compensation. And “given the critical question of law involved in the question”, the learned Justice was pleased to appoint KK Dheerendrakrishnan as Amicus Curiae to assist the Court.
The apex court had a quarter century ago expounded the principles of “compensatory justice in criminal law” and urged a national policy and law which would extend to all victims (Hari Singh vs Sukhbir Singh and Others 1988). Further, it maintained that the compensation “should not be limited only to fines or penalties, if realized”, but rather “the State should accept the principle of providing assistance to victims out of its funds, even in case of acquittals or where the offender is not traceable or identifiable”.
What is more, as the Court rightly notes: the Law Commission of India, in its 154th report, recommended incorporating a provision like Section 357A to the CrPC. Such a scheme is justified on the “principle that the State has a humanitarian responsibility to assist crime victims” and that the “assistance is provided because of the social conscience of its citizens and as a symbolic act of compassion” [Para 6]. The learned judge, on two grounds, negatived the contention that victim compensation can be denied. First, a welfare legislation has to be construed broadly: “When the welfare statute is made with the single focus of the benefit of victims, such an Act must be treated as remedial to protect the victims. While interpreting a provision brought in as a remedial measure, that too, as a means of welfare for the victims of crimes, the court must always interpret the words in such a manner that the relief contemplated by the provision is secured and not denied to the class intended to be benefitted” [Para 12]. Did the State not know even this much?
The second ground concedes that “the term ‘sexual assault’ found in either of the Schedules of the Scheme cannot be taken as a ‘sexual assault’ as defined under the POCSO Act”. However, “the general meaning of the term ‘sexual assault’ must be taken” into account. For example, “Black’s Law Dictionary defines ‘sexual assault’ as (i) sexual intercourse with another person who does not consent (ii) offensive sexual contact with another person, exclusive of rape”. And in the Webster’s Dictionary, “the word ‘sexual assault’ means the crime of touching someone in an unwanted sexual way”. Thus, “the term ‘sexual assault’ found in either of the Schedules of the Scheme” must be construed as “any sexual offence against a victim, including sexual harassment” [Para 13]. It should never be forgotten that the POCSO Act is intended as a “self-contained comprehensive legislation for the protection of children from sexual offences, with emphasis on the best interest and well-being of the child at every stage of the criminal process, and to ensure the healthy physical, emotional, intellectual, and social development of the child” [Para 14]. Did the officials not know all this already?
Not fully satisfied in reiterating the need for an appropriate understanding, the Court proceeded to direct further that “it is obligatory on the part of the State Government to formulate a comprehensive victim compensation scheme specifically for the victims of sexual offences under the POCSO Act or to make necessary amendments in the existing Kerala Victim Compensation Scheme, 2017 (as amended in 2021) incorporating a separate Schedule applicable to sexual offence victims under the POCSO Act. The State Government shall take necessary steps in this regard forthwith”. Moreover, till the framing of such a “comprehensive scheme or making amendments to the existing scheme … the NALSA Scheme, 2018 shall act as a guideline to the Special Court to award compensation to child victims of sexual offences” as per directions already mandated by the Supreme Court in Nipun Saxena case (2019).
It is significant to note that the Kerala High Court had in Abhishek vs State of Kerala (2020) said that implementation of the provisions of the POCSO Act needs to be “improved radically”, with a view “to protect the children … from the risk of secondary victimization and to make the justice delivery under the statute effective and meaningful” and had “issued 26 general directions”.
Significantly, direction No 24 provides that the state shall take necessary steps forthwith to enable the Kerala State Legal Services Authority to draw and disburse the compensation payable to the victims in cases arising under the POCSO Act. This will be in terms of the provisions of the Kerala Victim Compensation Scheme, 2017 by considering the requests made by the Legal Services Authority or by providing the advance amount to them. Further, it shall ensure that no victim is made to wait for the compensation ordered to be paid by the Special Court, especially for meeting an urgent need [Para 16]. “Forthwith”, the Court had said then, yet the state did nothing except to deny compensation!
Very recently, an exasperated Supreme Court (per Justices L. Nageswara Rao, Hemant Gupta, and S Ravindra Bhat) lamented the situation: “To ensure that the Tribunals should not function as another department under the control of the executive, repeated directions have been issued which have gone unheeded forcing the Petitioner (Madras Bar Association) to approach this Court time and again. It is high time we put an end to this practice. Rules are framed which are completely contrary to the directions issued by this Court.”
It is an amazingly sad commentary on the democidal governance tendencies that carry on the affairs of state as if the Supreme Court and High Court directions did not matter one bit even in the arena of principled policy for compensation for sexual assaults and harassment.
The State of Kerala, publicising its vaunted “development” model, did not lead the nation by setting an example of quick executive and legislative action. Rather, it disregarded the fact that the judicial directions and orders are based on constitutional grounds of fundamental rights and directive principles and are in no sense of that curious term an example of judicial overreach.
As I write this, we were celebrating our 76/77th Independence Day, a festive day. I am reminded of a ditty set to music by the great composer Naushad: “Jahan Bajti Hey Sehnai, Wuhan Matam Bhi Hota Hai” (wherever the trumpet blows, we also hear the sounds of lamentation). For how long will the sound of the trumpet continue to silence the vociferous matam?
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer