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Synopsis

The Supreme Court has issued notice to the Centre in a plea by NGO Bachpan Bachao Andolan against the "dangerous trend" by law enforcement agencies and courts to dilute the provisions of penal laws in cases involving sexual assault of teenagers between 16-18 years, in name of "consensual and romantic relationship".

A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra on August 25 sought a response from the Union government and the National Commission for Protection of Child Rights after hearing senior advocate H S Phoolka on behalf of the petitioner.

The NGO's plea said the public interest litigation has been filed for enforcement of the fundamental rights of the most vulnerable members of the society i.e., children, who are subject to sexual exploitation and abuse and their rights are being infringed, which is in gross violation of the constitutional protection guaranteed under Article 21 of the Constitution of India.

"The present petition has been necessitated due to the approach of the law enforcement agencies and as reflected in various orders passed by different courts throughout the country which shows that the interest of a large number of child victims of sexual abuse, especially girls are being jeopardised due to the dissemination of misinterpreted and incorrect data by various NGOs and governments, concerning elopement and romantic relationship cases under the Protection of Children from Sexual Offences Act, 2012," it said. 

The plea contended this data has misled various state authorities, law enforcement agencies, and courts, resulting in "insensitivity including unnecessary observations and spontaneous, flippant, or off-the-cuff remarks which have further fuelled the vicious circle of insensitivity, delay, lack of societal support, lack of rehabilitation, pressure from the community and accused and a complete lack of access to justice". 

It also contended there is an increased belief among the law enforcement and judicial circles that the POCSO Act is being misused and that the majority of POCSO cases are resulting from consensual relationships between teenagers and are of elopement which is far from reality.

"Despite the magnitude and the large number of children getting abused, only a trivial number are getting reported. This is due to parents, families, and children having societal pressure of associating reputation with abuse. Also, the apathy/ lack of trust in the criminal justice system results in people not coming forward and reporting cases of abuse which in turn allows the perpetrators to become sexual predators. Moreover, despite official facts and figures, various NGOs, and fall under the category of "Consensual Romantic Relationship" between teenagers that often get criminalised," it said.

The plea claimed governments, and/or law enforcement authorities have wrongly interpreted and stated that 60% to 70% of POCSO cases are pertaining to consenting minors.

The plea cited an example of the Tamil Nadu government, which has recently relied on flawed methodologies to claim that 60% of cases fall within the category of mutual romantic relationships. 

The Office of the Director General of Police, Tamil Nadu issued a circular memorandum on December 03, 2022 inter-alia directing the police officials to not show haste in effecting an arrest of the accused in mutual romantic cases. 

"This clearly reveals the magnitude of disparateness during the judicial interpretations or discourses amongst the law enforcement agencies. Issuance of such notifications/circulars creates ambiguities and superficial impunities while dealing with such cases of sexual abuse of victims aged 16-18 years. As per the news report published in The Hindu on 23.09.2022, Superintendent of Police, Law and Order, Puducherry stated that approximately 70% of cases registered under the POCSO Act consist of a combination of elopement and child marriage cases," it said.

The NGO said the official data clearly illustrated that approximately 29% of cases in the years 2019, 2020, and 2021 involved victims aged 16-18 years. 

"Therefore, a blanket statement to the effect that almost 60% of POCSO cases fall under the category of "elopement cases" while only the rest 40% are genuine POCSO cases is factually incorrect, misleading, and prejudicial to the interests of children and a colossal failure of the Indian justice system," it said.

Citing NCRB data, it said during 2019 to 2021, there were a total of 1,50,061 victims of POCSO, of which approximately 44,104 victims fall within the age bracket of 16 to 18 years. Therefore, the data corroborate that only 29.39% of victims fall in such age bracket of 16-18 years.
a)

NCRB Report, 2021 reveals that of the total 54,359 victims under the POCSO Act, approximately 29.97% (16,275 victims) in the age bracket of 16 to 18 years, are victims under Section 4 or Section 6 of the POCSO Act.

NCRB Report, 2020 unveils that of the 47,659 victims under POCSO Act, roughly 29.66% (14,118 child victims) in the age bracket of 16 and 18 years, are victims under Section 4 or Section 6 of the POCSO Act.

The petitioner asked the SC to issue directions to NCPCR to conduct a survey/analysis of POCSO cases, wherein the assessment of consensual cases in the age group of: (a) under 16 years; and (b) where victim falls within the bracket of 16-18 years could be deciphered.

It also sought framing of guidelines to the effect that in cases where examination of the victim is not conducted for a long time after the Special Court taking cognizance of the offence and the victim or key witnesses retract from their earlier statements due to time lag and turns hostile, the special court should examine the reason of victim turning hostile and rule out if there are any extraneous reasons such as delayed trials, economic instability of the victim, relationship with the accused, influential or authoritative status of the accused.

It also said directions should be issued to the special courts dealing with the POCSO cases to strictly record the evidence of the victim within 30 days of the Special Court taking cognizance of the offence as stipulated under Section 35 of the POCSO Act.

It also said the SC should issue directions that the guidelines framed by the Delhi High Court in the case of Dharmender Singh (2020) may be considered while deciding bail applications under the Protection of Children from Sexual Offences Act, 2012 throughout India; or if deemed appropriate, to lay down further guidelines specifically for considering bail in POCSO cases.

Case Title: Bachpan Bachao Andolan Vs Union of India and Anr.