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Synopsis

The Supreme Court has asked state governments to ensure strict implementation of POCSO Rules 2020, which offered an effective framework in providing support system to the child victims. 

A bench of Justices S Ravindra Bhat and Aravind Kumar said in crimes against children, it is not only the initiating horror or trauma that is deeply scarring; that is aggravated by the lack of support and handholding in the days that follow. 

"In such crimes, true justice is achieved not merely by nabbing the culprit and bringing him to justice, or the severity of punishment meted out, but the support, care, and security to the victim (or vulnerable witness), as provided by the state and all its authorities in assuring a painless, as less an ordeal an experience as is possible, during the entire process of investigation, and trial," it said. 

The court further noted the support and care provided through state institutions and offices is vital during this period. 

"Furthermore, justice can be said to have been approximated only when the victims are brought back to society, made to feel secure, their worth and dignity, restored. Without this, justice is an empty phrase, an illusion," the bench said. 

Dealing with a writ petition filed by NGO Bachpan Bachao Andolan, the bench noted the role of a ‘support person’ as envisaged in the Protection of Children from Sexual Offences Rules, 2020, despite being a progressive step, remains unfulfilled, or is given effect to, in a partial or ad-hoc manner, thus limiting its positive potential in offering support to victims and their families. 

The bench also noted that it had in 'In Re Alarming Rise in the Number of Reported Child Rape Incidents', recorded that as per the Supreme Court Registrar’s report prepared in November 2019, a support person had been appointed only in 4% of POCSO cases. 

It has been pointed out from the point of registering an FIR or complaint under the POCSO Act, the victim and their family are required to interact with the police machinery, medical officers and hospitals, the Magistrate, Special Court and/or Juvenile Justice Board, the concerned Child Welfare Committee and other stakeholders – which in itself can be daunting and overwhelming (over and above the already traumatic experience of the crime itself), often dissuading them from pursuing the case altogether. 

According to rules, a support person is to provide information, emotional and psychological support, and practical assistance which are often crucial to the recovery of the child. 

"This can go a long way in helping them cope with the aftermath of the crime and with the strain of any criminal proceedings – in many ways a support person, acts as guardian ad litem for the child," it said.

The bench pointed out in addition to maintaining confidentiality of all information, and addressing the concerns of the child and family, the support person is responsible for accompanying the child during recording of statement, medical examination, depositions, and to assist in all other interactions at the investigation, pre-trial, and trial stage. 

"The support person is to make available public or private emergency and crisis services; ensure availability of free legal aid; provide assistance with navigating the victim compensation scheme; track the status of investigation, arrest, and filing of charges of the accused person; follow the dates of the court proceedings to enable the victim or family to attend as required; and be abreast of any other developments such as grant of bail, detention status, etc. of the accused," court has said.

The court further said a support person – whether involved from the early stages of lodging a report or brought on board shortly thereafter - can play a tremendous role in offering encouragement, reassurance, and guidance, merely from their knowledge of the legalese, armed with a compassionate child-friendly approach.

"Their potential in providing moral support and guidance, which directly translates to better and more just outcomes both in terms of prosecution, and rehabilitation, cannot be overstated. To fulfil their role as envisaged, their primary focus, must be the child’s immediate care and protection, and to play the role of a helpful intermediary between the child, its family/guardian, and the various institutional stakeholders and authorities," the bench said.

Apex court has thus issued a slew of directions to the Uttar Pradesh Government's Principal Secretary to the Department of Women and Child Welfare, to convene a meeting within the next six weeks to review the facts, take action, and frame rules/guidelines as necessary on various issues including on support persons.

It has also sought an affidavit from the Union government and the National Commission for Protection of Child Rights on framing of guidelines by October 4, 2023. The bench put the matter for further consideration on October 6, 2023.

Case Title: BACHPAN BACHAO ANDOLAN vs. UNION OF INDIA & ORS.