Above: Illustration by Anthony Lawrence

~By Inderjit Badhwar

A long overdue piece of legislation aimed at safeguarding the rights, safety and privacy of kids was finally enacted in 2012. Known as the POCSO (Protection of Children from Sexual Offences) Act, it was a laudable initiative to punish more harshly and bring to book more speedily sexual predators who take advantage of defenceless youngsters. The Act defines a “child” as a person under 18 years of age.

But while formulating the legislation, as our senior editor Sujit Bhar wrote in an extensive analytical piece for this magazine’s website www.indialegalive.com, parliament did not take into consideration situations of victims who are over 18, but who suffered the disability of possessing the “mental age” of a child, maybe even an infant. And five years later, the judicial system has had to grapple with this vexing issue.

But first, the major features of the Act as already spelled out in an earlier story on our website: It filled holes in the existing laws through which offenders could escape.

The Act deals with a wide range of sexual offences, including penetrative sexual assault, non-penetrative sexual assault (kissing, fondling), and non-contact-based sexual acts such as sexual harassment.

Unlike the Indian Penal Code which treats sexual intercourse by a man with his wife above the age of 15 years as an exception to rape, the POCSO Act does not permit any exception. In fact, penetrative sexual assault and non-penetrative sexual assault by a person who is related to a child through marriage constitutes an aggravated offence.

The Act also provides for establishing special courts inter alia empowering the state to make special provisions for children. Recently, a Supreme Court bench of Chief Justice JS Khehar and Justices DY Chandrachud and Sanjay Kishan Kaul heard a petition filed by Gaurav Kumar Bansal praying for the appointment of independent public prosecutors to pursue cases filed under the Act. He also pleaded for the establishment of fully separate courts, with child-friendly infrastructure and atmosphere for trials. These would be different from the Juvenile Justice Courts, which already exist.

Unlike the Indian Penal Code which treats sexual intercourse by a man with his wife above the age of 15 years as an exception to rape, the POCSO Act does not permit any exception.

The Court found the issue to be important enough and issued a Writ of Mandamus to lower authorities, including high courts, to make available such facilities for children. The petitioner also said that there was a shortage of judges for dealing with such cases. Despite his having filed several pleas in the Delhi High Court and having received a sympathetic response regarding the appointment of a special judge to hear these cases, no action had been taken. He requested the Supreme Court to issue a Writ of Mandamus, directing the different state commissions to appoint an independent public prosecutor as defined under Section 32 of the POCSO Act.

The apex court order said: “The petitioner has invoked the jurisdiction of Delhi High Court. We are satisfied with the petitioner that the issue is very important and needs prompt attention. We, therefore, request the high court of Delhi to expeditiously dispose of the writ petition.

“We also have perused the different annexures where it was shown that public prosecutor has not been appointed in various states, such as Gujarat, Himachal Pradesh, Tamil Nadu, Punjab, Tripura, Haryana, Maharashtra, Chhattisgarh, Kerala, Nagaland, Mizoram, Meghalaya, Puducherry and Andaman and Nicobar,” the order said.

“We consider it just (and) appropriate to require the registry of this court to transfer to registrar general of the different states and the chief justice of respective high courts to take a suo motu (action) to implement Section 32 of POCSO Act 2012, to appoint independent public prosecutor.

“The high courts should also examine the available infrastructure, so that a child-friendly atmosphere is provided where the case pertaining to above will be dealt with.”

While this has certainly created greater movement on this issue, thanks to the prodding by the apex court, a major drawback of the Act—the controversy over the mental age of a victim—remains unresolved. This worrisome issue recently came up for interpretation before the Supreme Court. Following lengthy deliberations, the Court ruled that it is the biological and not mental age of a rape survivor which should be the yardstick for deciding whether the case would be filed under the stringent POCSO Act.

As www.indialegallive reported: “This paradox was highlighted in the order of the bench of Justices Dipak Misra and RF Nariman, who said that it was up to the legislators to interpret and provide guidelines for judgments to run on. They said: ‘…to include the perception of mental competence of a victim or mental retardation as a factor will really tantamount to causing violence to the legislation by incorporating certain words to the definition. By saying age would cover mental age has the potential to create immense anomalous situations without there being any guidelines or statutory provisions. Needless to say, they are within the sphere of legislature’.”

The bench also said: “If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether there is a consent or not. In certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula. It is difficult to say in absolute terms.”

This was the judgment in a case being fought by the 68-year-old mother of a 40-year-old woman whose is suffering from cerebral palsy since birth and her mental age has been determined through tests to be that of a six-year-old. She had been the victim of a sexual assault, and while the sole accused has died in custody, her mother wants this case to be moved to the Special Court dealing with POCSO matters.

Clearly, there are gaps in the otherwise commendable legislation which still need to be filled by India’s parliamentarians.

—Inderjit Badhwar is Editor-in-Chief, India Legal.
He can be reached editor@indialegallive.com