Supreme Court of India
Credit: PTI File Photo
The Supreme Court has decided to examine a plea against the growing tendency by law enforcement agencies and the courts to describe cases related sexual assault of 16-18 years children as "consensual and romantic relationship" contrary to the spirit and object of the POCSO Act.
A bench of CJI D Y Chandrachud and Justices J B Pardiwala and Manoj Misra on Friday issued notice to the Union government and the National Commission for Protection of Child Rights on the PIL filed by NGO 'Bachpan Bachao Andolan'.
Senior advocate H S Phoolka, appearing for the NGO, highlighted the trend in various state authorities, law enforcement agencies, and courts, resulting in "insensitivity including unnecessary observations and spontaneous, flippant, or off-the-cuff remarks" in such cases.
The court decided to tag the plea with a petition filed by NCPCR against the Punjab and Haryana High Court's 2022 judgement, which upheld marriage of a man with a minor girl.
The plea said there is an increased belief among the law enforcement and judicial circles that the POCSO Act is being misused, and that the majority of cases under it result from consensual relationships between teenagers' elopement, which is far from reality.
It also claimed certain NGOs also adopted flawed methodologies to present a wrong picture that 60-70 per cent of cases fall under consensual relationship category. Such a claim is factually incorrect, misleading, and prejudicial to the interests of children -- a colossal failure of Indian criminal justice system, it said.
It cited NCRB data which showed that 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 corroborates that only 29.39 per cent of victims fall in the age bracket of 16-18 years, it said.
The NGO asked the court to issue directions to NCPCR to conduct a survey/analysis of POCSO cases and issue guidelines for examination of the victim within 30 days by the Special Court.
The plea sought a direction to quash a circular issued by the Tamil Nadu's DGP on December 03, 2022, directing the police officials to not show haste in effecting an arrest of the accused in mutual romantic cases.
It also sought 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 POCSO Act throughout country or lay down further guidelines for it.
"Contrary to the spirit and purpose of the legislation, law enforcement agencies and courts, in most of the cases, where the victim is between the age of 16-18 years, have drawn a presumption that the incident involved consensual and romantic relationship between the victim and the accused. Consequently, a liberal view is taken either by the investigating agency or by the courts while dealing with the bail applications, recording testimony, quashing petitions, etc of the accused which is evident from various observations made by the courts in the orders passed in this regard," it said.
Bhuwan Ribhu, former National Secretary, Bachpan Bachao Andolan said, “This is a welcome step as it will pave the way for creation of guidelines for cases in which a child victim of sexual abuse turns hostile due to coercion, pressure, and it is deemed to be a case of consent.”