2
Procedural Compliance of Special Courts
with the POCSO Act, 2012
Sonia Pereira*and Swagata raha**
I. Introduction
The POCSO Act has been envisioned as “a self-contained comprehensive
legislation” to protect children from a range of sexual offences and “safeguarding
the interest and well-being of the child at every stage of the judicial process,
incorporating child-friendly procedures for reporting, recording of evidence,
investigation and trial of offences and provision for establishment of Special
Courts for speedy trial of such offences.”1 It considers the specific needs of
children, to afford children the additional protection they are entitled to because of
their vulnerability and their physical and mental immaturity, and for the speedy
disposal of such cases.
The POCSO Act prescribes several procedural safeguards while dealing with
cases under the Act. Compliance with these procedural protections ensures that
*
Sonia Pereira (LLM, Georgetown University) worked with Amnesty International in London on
human rights issues in South Asia. She also contributed to CCL-NLSIU’s Study on the Working
of Special Courts in Maharashtra.
**
MSt International Human Rights Law, Oxford University, B.A.LLB (Hons), W.B. National
University of Juridical Sciences Kolkata. Currently working as Senior Research Associate
(Consultant) with the Centre for Child and the Law, NLSIU Bangalore. She led the Studies on
the Working of the Special Courts in Delhi, Assam, and Maharashtra and has conducted capacity
building programmes for Judges of Special Courts in different States.
The authors are grateful to Pratiksha Basarkar, a IV B.A.LLB (Hons.) student from the National
Law School of India University, Bangalore for providing research assistance on the comparison
of the POCSO Act, 2012 with international standards. The article has greatly benefited from
the feedback by the team at CCL-NLSIU comprising Shraddha Chaudhary, Anuroopa Giliyal,
Arlene Manoharan, and Monisha Murali.
1
Statement of Objects and Reasons, POCSO Act, 2012.
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
11
due process is followed, children feel supported and secure throughout the entire
judicial process and are not subjected to secondary victimization. This Chapter
delves into the procedural requirements under the POCSO Act, and international
standards set out in the UN Convention on the Rights of the Child, 1989 (UNCRC)
and other international guidelines. Key findings and common trends from studies
conducted by CCL-NLSIU in Assam, Maharashtra, Delhi, Karnataka and Andhra
Pradesh are highlighted to observe the extent to which these safeguards are being
complied with.
II. Overview of Procedural Provisions relevant to Special
Courts and their Comparison with International Standards
2.1. Child-friendly procedures
Section 33(2), POCSO Act prohibits the Special Public Prosecutor (SPP) and
the defence lawyer from putting questions to the child directly. All questions
during the examination-in-chief and cross-examination must be routed through
the Special Court. The purpose of such a provision is to guarantee that the child
does not feel intimidated and threatened by the SPP and defence lawyers and that
the questions asked to the child are filtered to ensure that only age appropriate
and comprehensible questions are permitted. The POCSO Act has given statutory
recognition to the Supreme Court’s direction in Sakshi v. Union of India,2 that during
a trial of child sex abuse or rape, the questions asked during cross-examination
should be given in writing to the Presiding Officer of the Court so that they can
be addressed to the victim or witnesses in a language which is clear, and is not
embarrassing.
As per Section 33(3), POCSO Act, frequent breaks should be allowed to the
child during trial, if necessary. Special Courts should also ensure that children
are not called repeatedly to testify in the court under Section 33(5). The Model
Guidelines on the POCSO Act elaborate that the “start of children’s testimony
should not be delayed by other matters on the court list. It is best to... bear in mind
his concentration span, the length of any recording, the best time to view it and
the need for breaks.” 3 The objective is to avoid unnecessarily troubling the child to
2
2004 Supp (2) SCR 723.
3
Ministry of Women and Child Development, Model Guidelines under Section 39 of The Protection
of Children from Sexual Offences Act, 2012, September 2013, 1.2 (v), p. 67, , http://wcd.nic.in/
policies/model-guidelines-under-protection-children-sexual-offences-pocso-act2012.
12
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
repeatedly appear in court. The purpose of breaks is to ensure that the child does
not feel overwhelmed by the proceedings in the court, and is allowed to testify at
his or her own pace and comfort.
Section 36(1), POCSO Act, requires the Special Court to ensure that the child
is not exposed to the accused while testifying. Section 36(2) suggests that the
evidence could be recorded through video conferencing, single visibility mirrors,
curtains or any other device. The purpose of this section is to protect the child from
being intimidated during testimony and to ensure that the child is not traumatised
by having to revisit the memory of the incident in the presence of the alleged
perpetrator.
Section 37, POCSO Act requires the Special Court to conduct the trial in camera
and in the presence of the parents of the child or any other person in whom the
child has trust or confidence. The child can also be examined in a place other than
the courtroom, if the Special Court is of the opinion that it is required to do so.4
This provision protects the privacy of the child, as well as aims to establish a childfriendly courtroom atmosphere. The absence of the public and the media during
the testimony is meant to protect the child from embarrassment and fear when
testifying to intimate details.
Several provisions of the POCSO Act are in line with the Guidelines on Justice
in matters involving Child Victims and Witnesses of Crime, 2005 (2005 Guidelines),
which recommend that measures should be put in place to ensure protection of
children from being exposed to the alleged perpetrator, and ensure that they are
questioned in a child sensitive manner, with judicial supervision and reduced
intimidation such as by using testimonial aids.5 Safeguards should be put in place,
including police protection and avoidance of direct contact between children and
the alleged perpetrators.6 Unnecessary exposure to the public should be avoided,
including through measures such as excluding the media and public from the
courtroom during the child’s testimony.7 The POCSO Act does not require the use
of testimonial aids or police protection, and apart from providing for in camera
trials and prohibition on exposure during investigation and evidence, does not
contain express provisions regarding exposure to the accused before trial.
4
POCSO Act, 2012, Section 37 proviso.
5
Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, ECOSOC
Resolution 2005/20, Aricle 31, http://www.un.org/en/ecosoc/docs/2005/resolution%20200520.pdf (2005 Guidelines).
6
Article 34, 2005 Guidelines.
7
Article 28, 2005 Guidelines.
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
13
2.2. Creation of a child-friendly atmosphere
Section 33(4), POCSO Act requires the Special Court to create a child-friendly
atmosphere by allowing a family member, guardian, friend, or a relative, in whom
the child has trust or confidence, to be present in the court. The Model Guidelines
provide that the child should be given an opportunity to visit the court to
familiarize himself with it before the trial. This will enable the child to experience
the atmosphere in Court so that the child is not intimidated at the trial.8
Recommendations from Stakeholders for Child-friendly Special Courts
During CCL-NLSIU’s Studies on the Working of Special Courts in Andhra
Pradesh, Assam, Delhi, Karnataka, and Maharashtra, respondents from the
judiciary, lawyers, prosecutors, child protection systems, NGOs, and children
were asked their views on child-friendly Special Courts. Recommendations
that emerged are as follows:
●
Separate Complex: Special Courts should be located in a separate complex
and not within the regular criminal courts complex. This is to ensure that
children do not feel intimidated when confronted with the regular criminal
court complex where accused are produced in chains and handcuffs.
●
Separate Entrance: There should be a separate entrance and a separate
waiting room to guarantee that the child is not exposed to the accused and
his defence lawyers before the trial, hence reducing the chances for the
child to feel threatened.
●
Accessible Structures: The court complexes should be accessible to
child victims and all other people with disabilities so that they are not
disadvantaged because of their disability. The court complexes should
have easily accessible toilets, including toilets for child victims and other
people with disabilities.
●
Seating arrangements: The judge should not sit on a raised dais. This
is so that the judge appears friendly and approachable to the child.
The arrangement should be informal and should not resemble a court
hall. This is so that children do not feel like they are being put on trial,
but understands that they are there to give testimony in a supported
environment.
8
Supra, n.3.
14
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
●
Orientation to the child: The child should be oriented to the court hall
and the judge before the trial, and the procedure should be explained to
the child. This will to some extent allay the child’s fears and help prepare
the child for the trial.
●
Privacy: Minimal staff should be allowed in the courtroom, so that the
privacy of the child is protected and the child does not feel overwhelmed.
●
Dedicated Special Public Prosecutor (SPP): There should be a dedicated
SPP for every Special Court. This will ensure that the SPP is sensitized and
well versed in POCSO matters.
●
Exposure should be prevented: The Court hall should be designed in
such a way that the child cannot see the accused while testifying, whether
through the use of a separate room, a screen or partitions. This way the
child will not be intimidated by the presence of the accused.
●
Recording of testimony: The testimony should be recorded quickly
and in minimal number of hearings as needed. The case should also be
disposed of speedily so that the child is not made to endure the trauma of
the judicial process, and can continue the process of recovery.
●
Support Persons: Support Persons should be made available so that the
child is guided through the maze of the legal system and is assisted in the
pre-trial processes and trial process.
●
Involvement of experts: Child psychologists, special educators,
interpreters and other experts should be involved as per the needs of
the child, particularly in complex cases involving younger children and
children with disabilities.
●
Communicating with children: SPP’s should receive training in how to
best communicate with the child, and on ways to boost the child’s trust
and confidence. The child should be questioned in a manner and language
that the child understands. Questions should not be aggressive but should
be facilitative to the child’s testimony. It is important that the child feels
that the child’s testimony is important and valued.
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
15
2.3. Facilitating the right to be heard
Section 38, POCSO Act, requires the Special Court to take the assistance of
a qualified translator, interpreter, special educator, or a person familiar with the
manner of communication of a child if it is necessary. The District Child Protection
Unit (DCPU), a body created under the Integrated Child Protection System and
now provided for under the Juvenile Justice (Care and Protection of Children) Act,
2015,9 has been vested with the responsibility of preparing a list of such experts
and ensure it is available to the Special Courts.10
The Model Guidelines provide a comprehensive list of best practices when
using interpreters11 The assistance of such persons ensures that the testimony of
the child is strengthened and not diminished by the developmental needs of the
child and ensures that all children remain on par in terms of their access to justice.
Section 40, POCSO Act, recognizes the right of the family or guardian of the
child to take assistance of a legal counsel of their choice in proceedings under the
POCSO Act. The District or State Legal Services Authority is required to provide
them with a lawyer in case they are unable to afford one. This provision is an
extension of the right to legal aid as guaranteed under Article 39-A of the Indian
Constitution12 and reinforced in the Legal Services Authorities Act, 1987. The
objective of this provision is to ensure that a child is not disadvantaged due to
their economic background in attaining justice.
Moreover, in case of a child having a mental or physical disability, the
assistance of a special educator, or an expert, or a person familiar with the child’s
communication manner can be sought by the police officer or Magistrate who is
recording the child’s statement.13 The report must be in a manner that the child
can understand, and translators should be engaged to simplify the communication
process, if needed.14 Rule 4(12) of the POCSO Rules provides a non-exhaustive list
9
JJ Act, 2015, Section 106.
10 POCSO Rules, 2012, Rule 3(1).
11 Supra n.3, pp. 19-20.
12 Article 39 A of the Constitution states: “The State shall secure that the operation of the legal
system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free
legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities.”
13 POCSO Act, Section 26(3).
14 Section 39, POCSO Act permits the state government to make guidelines on the assistance of
experts to children in the pre-trial and trial stage.
16
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
of information to be provided to the child, including the status of investigation and
the sentence imposed on the offender.
Article 12(1) of the UNCRC recognises a child’s right to participate and
express views when the child is capable of forming views, in accordance with the
age and maturity of the child. This also includes the right of the child to be heard in
judicial proceedings, directly or through a representative. In the context of judicial
proceedings, the Committee on the Rights of the Child (CRC) in General Comment
No. 12 The right of the child to be heard (2009) elaborated that:
A child cannot be heard effectively where the environment is intimidating,
hostile, insensitive or inappropriate for her or his age. Proceedings must be both
accessible and child-appropriate. Particular attention needs to be paid to the
provision and delivery of child-friendly information, adequate support for selfadvocacy, appropriately trained staff, design of court rooms, clothing of judges
and lawyers, sight screens, and separate waiting rooms.15
According to the 2005 Guidelines, if the child is a capable witness, the
credibility of the testimony should not be diminished by the age of the child alone.16
Professionals should ensure that children express themselves regarding their
involvement in the justice process by ensuring consultation of children.17 Children
and if required, family members, should receive assistance from appropriately
trained professionals to enable the child to participate in the justice process.18 They
should receive support from child victim or witness specialists from the initial
report till necessary.19 Professionals should develop methods to aid children in
improving their understanding and communication at the pre-trial and trial stage,
including measures such as specialists to address special needs, support persons to
accompany children during testimony, and appointing guardians where necessary
to protect the child’s legal interests.20
While there are no specific provisions related to appointment of guardians to
protect the child victim’s legal interest under the POCSO Act and Rules, they are
15 The Committee on the Rights of the Child in its General Comment No. 12 (2009) The right of the
child to be heard, para 34, http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/
CRC-C-GC-12.pdf
16 Article 18, 2005 Guidelines.
17 Article 21, 2005 Guidelines.
18 Article 22, 2005 Guidelines.
19 Article 24, 2005 Guidelines.
20 Article 25, 2005 Guidelines.
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
17
entitled to legal aid and the assistance of experts, special educators, and support
persons in the course of the trial.
2.4. Protection of Privacy
Section 33(7), POCSO Act requires the Special Court to protect the identity of
the child during the investigation and trial. For reasons recorded in writing, the
Special Court can permit disclosure if it is in the interest of the child. An explanation
to Section 33(7) states that the identity of the child includes information about
the child’s family, school, relative, neighbourhood or any information through
which the identity of the child may be revealed. The purpose of this provision is
to ensure that the privacy of the child is always protected, in order to afford a fair
opportunity to the child to move on with their lives once the trial is over.
Interestingly, Clause 23 of the draft POCSO Bill, provided for the disclosure
of the identity of the child in the media, with the consent of the child or the parent
or guardian. The Standing Committee objected to this clause stating that seeking
the consent of the child could cause further trauma to the child, and could also
be problematic when the parent or the guardian is the accused. Accordingly, the
provision was amended to remove the reference to parental consent.21
Article 17 of the International Covenant on Civil and Political Rights, 1966 and
Article 16 of the UNCRC protect the privacy of individuals and children, respectively
and grants them legal protection from attacks on their honour and reputation.
According to the 2005 Guidelines, there should be minimum interference in the
child’s private life.22 Children’s privacy must be protected, including information
of their involvement in the justice process, through confidentiality and restricted
information disclosure.23
The right to privacy of the child is emphasized in the Preamble of the POCSO
Act and Section 23, POCSO Act which prohibits any reports or comments from
being made in media which can lower the child’s reputation or infringe his or her
privacy. Furthermore, under Section 33(6), POCSO Act, character assassination
21 Department-Related Parliamentary Standing Committee on Human Resource Development,
Two Hundred Fortieth Report On The Protection Of Children From Sexual Offences Bill, 2011,(Standing
Committee Report on POCSO Bill) para 12.2 , http://www.prsindia.org/uploads/media/
Protection%20of%20children/SCR%20Protection%20of%20Children%20from%20Sexual%20
Offences%20Bill%202011.pdf
22 Article 12, 2005 Guidelines.
23 Article 27, 2005 Guidelines.
18
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
and aggressive questioning is prohibited. However, there is no clear provision on
suppression of the name of the accused, as often it can reveal the identity of the
victim especially when they are related.
2.5. Speedy trial
Section 33(1) of the POCSO Act expressly empowers the Special Court to take
cognizance of an offence based on a complaint or upon a police report, without
the accused being committed to it for trial. In Kum. Shraddha Meghshyam Velhal v.
State of Maharashtra,24 the Bombay High Court held that the Judicial Magistrate do
not have the jurisdiction to deal with remand of the accused under the POCSO
Act. The High Court observed that it is crucial for all police officers to produce the
accused before the Children’s Court and not the Magistrates Court, as the special
procedures come into play from the process of filing of the private complaint or
police report. This provision confers a special status on the Special Court to deal
with all cases under the Act from the initial stage of the complaint being registered
and the accused being produced for remand.
As per Section 35(1), POCSO Act, evidence should be recorded within 30 days
of the Special Court taking cognizance of the offence, and reasons for delay (if any)
should be recorded. Section 35(2) states the trial should be completed within one
year of the court taking cognizance of the offence. The purpose of this provision is
to ensure that trials are not drawn out, and that the child is not forced to relive the
abuse for a long period of time. Similar emphasis is in Guideline 30 (c) of the 2005
Guidelines which states that professionals should ensure that trials take place as
soon as practical, unless delays are in the child’s best interest. The CRC has also
stressed that the “celerity principle” should be applied in cases involving child
victims of violence with due regard to the rule of law.25
2.6. Support to the victim
In keeping with the 2005 Guidelines26 which provide for support persons to
be appointed to accompany the child during testimony and to provide effective
assistance to the child to testify and to improve the child’s communication
24 Criminal Application 354 of 2013 decided by the Bombay High Court on 03.07.14.
25 Committee on the Rights of the Child, General Comment 13 The right of the child to freedom
from all forms of violence, 2011, para 54(d), http://www2.ohchr.org/english/bodies/crc/docs/
CRC.C.GC.13_en.pdf
26 Article 22-25, 2005 Guidelines.
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
19
and understanding at the pre-trial and trial stages, the POCSO Rules provide for
a Support Person.
According to Rule 4(7) POCSO Rules, 2012, the CWC may provide a support
person to provide assistance to the child throughout the process of investigation
and trial. The Model Guidelines on POCSO call for these support persons to provide
information, emotional and psychological support and practical assistance which
are often crucial to the recovery of the child.27 The DCPU and the CWC should
maintain a list of persons/ NGOs who may be appointed as support persons.28
III. Gaps in Implementation
3.1. Direct cognizance by the Special Court is not fully implemented
The committal rates differed from state to state, in breach of Section 33 (1) of
POCSO providing for direct cognizance to be taken by the Special Court. In Delhi,
14.39% cases were committed to the Special Court by the Magistrates Court,29
54.65% cases in Assam,30 7.44% cases in Maharashtra31, and 11.7% cases in Andhra
Pradesh.32 In Karnataka, judgment analysis revealed that soon after the POCSO Act
was notified, there was some confusion in the Court regarding the production of
accused. However, the accused is now produced directly before the Special Court
for remand. Committal proceedings were initiated in 18 cases decided between
September 2013 and September 2014. From September 2014 onwards, the Special
Court started taking direct cognizance.33 The analysis revealed that the rate of
committal declined in all States with each passing year.
27 Supra n.3, p.50.
28 Supra n.3, p.51.
29 CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Delhi (2016), p.
35, https://www.nls.ac.in/ccl/jjdocuments/specialcourtPOSCOAct2012.pdf (Delhi Report).
30 CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Assam (2017),
p.26,
https://www.nls.ac.in/ccl/jjdocuments/studyspecialcourtassamPOSCOAct2012.pdf
(Assam Report).
31 CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Maharashtra (2017),
p.17, https://www.nls.ac.in/ccl/jjdocuments/POSCOMaharashtrastudy.pdf (Maharashtra
Report).
32 CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Andhra Pradesh
(2017), p.16, https://www.nls.ac.in/ccl/POSCOAP2017study.pdf (Andhra Pradesh Report).
33 CCL-NLSIU, Study on the Working of Special Courts under the POCSO Act, 2012 in Karnataka (2017),
p. 21, https://www.nls.ac.in/ccl/jjdocuments/posco2012karnataka.pdf (Karnataka Report).
20
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
3.2. Practice of direct questioning continues
Except for the Saket and Karkardooma courts in Delhi, interviews with
respondents in other Special courts in Delhi,34 Assam,35 Maharashtra,36 Karnataka,37
and Andhra Pradesh38 revealed that questions are almost always posed by the
defence lawyers and the prosecutors to the child directly, in contravention of
Section 33(2) of POCSO Act. The judge intervenes only when the child does not
understand the question, or when the question is posed in a particularly aggressive
or hostile manner.
This is worrying as this provision forms a large component in the establishment
of a child-friendly environment in the courtroom. The essence of this provision was
to prevent intimidation of the child, and ensure that questions are age appropriate
and suitable to the developmental needs of the child, and in a language that the
child understands. While some courts exhibit sensitivity when the child is very
young, older children are assumed to be capable to withstand cross-examination
by a defence lawyer. For instance, in one of the cases analysed,39 the victim, a
17-year-old-girl who alleged that she had been raped on repeated occasions by
her father, was repeatedly questioned about her “friendships” with boys and
towards the end of her cross-examination admitted that she had filed a false case
against her father. The Special Court proposed perjury proceedings against her,
under a misconception of the law. It is very likely that the lengthy and aggressive
questioning during the cross-examination could have intimidated the child into
stating that she had filed a false case.
3.3. Minimizing Appearance and Frequent Breaks
In Maharashtra,40 Assam,41 and Andhra Pradesh,42 the provision requiring
Special Courts to allow frequent breaks and minimize appearances of the child is
mostly complied with, with the Special Court attempting to record the evidence
34 Delhi Report, p.36.
35 Assam Report, pp.26-27.
36 Maharashtra Report, pp.17-19.
37 Karnataka Report, p.21.
38 Andhra Pradesh Report, p.18.
39 Spl. C. No. 146/2014 decided on 22/12/2016 (Thane) in Maharashtra Report, p.19.
40 Maharashtra Report, pp.22-23.
41 Assam Report, pp.29-30.
42 Andhra Pradesh Report, pp.19-20.
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
21
in one hearing. Where cross-examination is deferred at the request of the defence,
heavy costs were usually imposed on the defence by one Special Court in Thane.43
However, in Delhi, it appeared that the testimony was scheduled as per the
convenience of the court, and not the child.44 In courts in Bangalore, Belagavi and
Ramanagara in Karnataka, this provision was found to have been neglected and
children were often summoned multiple times to the court as adjournments were
readily granted at the request of the defence.45
3.4. Child-friendly atmosphere lacking in many courts
In Delhi, most respondents were of the opinion that there was not much
difference between the trial conducted by the Special Court and that by a regular
criminal court.46 An interview with a respondent in Assam from the judiciary in
Dibrugarh suggested that the Special Court exercises discretion by permitting the
parent to be present only if the victim appears nervous.47 A parent, relative and
support persons are sometimes present in the courtrooms in Maharashtra.48 In
Bangalore, it is largely Support Persons working with children who encourage
children to ask for breaks and the situation in cases in which the child does not
have such support structure is not clear.49 Some efforts are made to create a childfriendly atmosphere in Special Courts in Andhra Pradesh, with the Judge offering
the child water and interacting with the child to relax him or her.50
3.5. Identity of the child is poorly protected
In most Special Courts in Delhi,51 Maharashtra52, Assam,53 Andhra Pradesh54
and Karnataka,55 no meaningful efforts were discernible to ensure that the identity
43 Maharashtra Report, p.22.
44 Delhi Report, p.41.
45 Karnataka Report, p.22.
46 Delhi Report, pp.33, 36-40.
47 Assam Report, p.27.
48 Maharashtra Report, p.19.
49 Karnataka Report, p.22.
50 Andhra Pradesh Report, p.18.
51 Delhi Report, p.41.
52 Maharashtra Report, p.23.
53 Assam Report, p.30.
54 Andhra Pradesh Report, pp. 20-21.
55 Karnataka Report, p.23.
22
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
of the child is protected. In these complexes, regular visitors know the POCSO
court hall. In Assam, the identity of the victim was disclosed by either naming
her or her family members in 77.32% cases.56 In Maharashtra, the identity of the
victim was revealed in 86.31% of the judgments studied.57 In Andhra Pradesh,
the identity of the victim was compromised in 96.85% of the cases studied.58 The
extent to which the identity of victims is disclosed, despite the law prohibiting it,
is disappointing.
3.6. Recording of evidence and disposal of cases delayed
According to Crime in India, 2016, a staggering 89% of trials under the
POCSO Act were pending.59 Maharashtra accounted for nearly half of the 27500
cases pending in POCSO courts across the country, followed by Kerala, Rajasthan
and Madhya Pradesh.60 Judgment analysis indicated that though Special Courts
were established for the speedy disposal of cases, a significant proportion of
cases take longer than a year to complete and there are often delays in recording
evidence. The delay is largely due to the time taken to complete investigations,
obtain forensic reports, and file charge-sheet. Reasons for delay in recording the
evidence of the child were, however, not mentioned in most judgments. In Delhi,
69% of the cases were disposed within a year,61 in Maharashtra 37% cases,62 and in
Assam 29.06% cases.63 In Karnataka, in only in 10 cases studied, the judgment was
passed within a period of one year from the date of FIR. Majority of cases in the
three districts studied in Karnataka i.e., 72.5% were disposed of after completion
of one year but within two years.64
Interestingly though, the acquittal rate as well as the rate of victims turning
hostile was highest in matters disposed within one year in Maharashtra,65 while in
56 Assam Report, p.30.
57 Maharashtra Report, p.23.
58 Andhra Pradesh Report, p.20.
59 National Crime Records Bureau, Crime in India, 2016, Table 4A.5 Court Disposal of Crime Against
Children Cases (Crime Head-wise), p.2.
60 Pradeep Tharkur, 47 % of all POCSO cases are pending in Maharashtra, Times of india, 2 Aug 2017,
https://timesofindia.indiatimes.com/india/47-of-all-pocso-cases-are-pending-in-maharashtra
/articleshow/59873178.cms
61 Delhi Report, p.44.
62 Maharashtra Report, p.28.
63
Assam Report, p.36.
64 Karnataka Report, p.29.
65 Maharashtra Report, p.29.
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
23
Assam, the rate of children turning hostile rose with the increasing gap between
the lodging of the FIR and the recording of the evidence.66 In Delhi, the conviction
rate was better in cases disposed between one and two years as compared to those
disposed within a year.67 CCL-NLSIU’s Maharashtra Report notes:
While matters should certainly be completed as early as possible, the
overemphasis on speedy trials should not take away from the need for sensitive
and developmentally appropriate appreciation of children’s testimonies and a
robust victim and witness protection program that is available from the time the
FIR is lodged.
3.7. Exposure to the accused not adequately prevented
Avoiding exposure to the accused is a crucial component in protecting the
best interests of the child, as this ensures that the child is not traumatised by facing
the accused, as well as it ensures that the opportunity for the accused and his
lawyers to intimidate the child is minimised. In most of the Special Courts visited
by CCL-NLSIU, apart from those in Karkadooma and Saket in Delhi, Prakasham
and Guntur in Andhra Pradesh, and Belagavi in Karnataka, there are no separate
entrances into the court. Hence, the child and their family are exposed to the accused
and the defence lawyers while waiting for the matter to be heard. Different courts
have tried to limit this exposure. Where Support Persons are appointed in some
courts in Delhi, they took the child to the canteen and brought her in just before
the case was called out. Some judges permitted the child to wait in the chamber.68
Special Courts have adopted varying practices in order to ensure that the
child cannot see the accused while testifying. Interviews with respondents in
Pune revealed that a plywood partition is placed between the victim and the
accused in the courtroom.69 In Assam, the Special Courts in Kamrup (Metro) and
Dibrugarh record the child’s statement in the judge’s chamber. Screens were used
in Dibrugarh in Assam and Prakasham and Guntur in Andhra Pradesh to prevent
exposure of the accused to the child during recording the statement.70 However,
certain Special Courts in Karnataka do not use tools to prevent exposure to the
accused. This mandatory provision is not sufficiently adhered to.71
66 Assam Report, p.35.
67 Delhi Report, p.43.
68 Delhi Report, p.44.
69 Maharashtra Report, p.30.
70 Assam Report, p.37; Andhra Pradesh Report, p.26.
71 Karnataka Report, p.74.
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Implementation of the POCSO Act, 2012
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3.8. Evidence strictly recorded in-camera
CCL-NLSIU’s Studies revealed that the evidence of the child is strictly recorded
in-camera in all five States.72 The courtrooms are cleared when the victim or material
witnesses like family members and eye-witnesses testify in POCSO cases. This is
a step towards ensuring that the child does not feel exposed, embarrassed and
re-traumatised while testifying, and that their privacy is protected. However, the
entire trial is not conducted in-camera by most Special Courts and witnesses like
the Investigating Officer and doctors are usually examined in open court.
3.9. Assistance of interpreters, experts, and special educators rarely taken
Interviews with stakeholders in Delhi73, Assam74 and Maharashtra75 revealed
that a list of qualified experts is not available with most Special Courts. Judgment
analysis in these States also did not reveal the use of special educators and
interpreters. An attempt was underway at preparing such a list of experts in
Bengaluru by the DCPO’s office.76 In Andhra Pradesh, the Special Courts engaged
special educators, translators and experts, usually brought in by the police.77
Although it is mandatory under the proviso to Section 119, Indian Evidence Act,
1872 for a court to seek the assistance of an interpreter or special educator to record
the statement of witnesses who cannot communicate verbally and to videograph
the statement, reference to them was extremely sparse in cases involving children
with intellectual disabilities or very young children in Maharashtra78 and Andhra
Pradesh79 and not found in any cases in Assam.80 In one case in Delhi, the accused
stood behind the victim and translated her testimony because the Special Court
had failed to arrange for a translator81 thus belying the spirit of the POCSO Act.
72 Delhi Report, p.45; Assam Report, p.38; Maharashtra Report, p.31; Karnataka Report, p.33;
Andhra Pradesh Report, p.26.
73 Delhi Report, p.45.
74 Assam Report, p.38.
75 Maharashtra Report, pp.31-34.
76 Karnataka Report, p.34.
77 Andhra Pradesh Report, p.27.
78 Maharashtra Report, p.31.
79 Andhra Pradesh Report, p.27.
80 Assam Report, pp.38-39.
81 Delhi Report, p.45.
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
25
3.10. Assistance of private legal practitioners seldom taken
Taking the assistance of legal aid lawyers or private lawyers is not the usual
practice in the five States studied by CCL-NLSIU. Few private lawyers attached
to NGOs in Delhi, Mumbai, and Bengaluru offered legal assistance to children
in POCSO cases and shared the hostilities they face from the SPPs and Special
Courts.82 Two Additional Public Prosecutors interviewed in Delhi shared that they
preferred not to rely on private lawyers and chose to work independently on their
matters,83 while PPs in Maharashtra perceived private lawyers as a “hindrance”.84
No Legal Aid Lawyers had been assigned to support the prosecution in POCSO
cases in the five States as the general belief was that no such assistance was
required. Encouragingly, some private lawyers were allowed by Special Courts in
Delhi to conduct the examination-in-chief and by prosecutors to assist them with
written submissions.85
3.11. Absence of a robust support system
Support persons play a very crucial role in ensuring that the child’s best
interests are being considered throughout the entire judicial process. The CCLNLSIU studies revealed that there is a severe shortage of available Support Persons
and that States have not prioritized the setting up of support systems. For instance,
no panel of Support Persons is available to children in Pune in Maharashtra, or
Guwahati and Dibrugarh in Assam. In Thane district, Support Persons are routinely
appointed from the panel of representatives from NGOs based in Mumbai. These
Support Persons are asked by the CWC to prepare the Social Investigation Report,
counsel the child victim, take them to court, facilitate the medical exam, and to
assist in repatriation processes.86 In Assam, support systems are mostly limited to
helping families lodge the FIR.87 Support Persons from NGOs were appointed only
in Bengaluru in Karnataka and in Delhi, and are able to cater to only a fraction of
the cases. In Bengaluru and Belagavi, Childline representatives make up for the
lack of formally appointed Support Persons.88
82 Delhi Report, p.46; Maharashtra Report, p.34.
83 Delhi Report, p.47.
84 Maharashtra Report, p.34.
85 Delhi Report, p.46.
86 Maharashtra Report, p.35.
87 Assam Report, pp. 39-40.
88 Karnataka Report, pp.35-37.
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Implementation of the POCSO Act, 2012
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Similarly, in the districts studied in Andhra Pradesh, Support Persons have
not been appointed, but Social Work graduates, the District Child Protection Unit
and Childline staff provide support informally.89 In Delhi, Support Persons are
appointed by the Delhi Commission for Women, Delhi Legal Services Authority,
and the CWCs during trial, but there is significant overlap and confusion about
their roles.90 Child victims interviewed in Delhi were highly appreciative of the
services provided to them by a Support Person, saying they derived strength from
the presence of the support person in the courtroom and that helped them testify
confidently.91 Unfortunately, except Delhi,92 none of the other States had a Witness
Protection Scheme in place and very little appears to have been done to prevent
children and families from turning hostile.
IV. Conclusion
The CCL-NLSIU Studies demonstrate that procedural compliance in all five
States needs to be strengthened and the duty to ensure compliance is not just on
the Special Court, but also the SPPs, District Child Protection Units, and Child
Welfare Committees. It is crucial that the child-friendly provisions are adhered
to by Special Courts and SPPs as the objective of the legislation is to safeguard
“the interest and well-being of the child at every stage of the judicial process.”93 If
the child is comfortable and confident in the court, this increases the chances of a
credible and strong testimony and in turn encourages convictions. It is essential
that Special Courts prioritise the creation of a child-friendly atmosphere and
ensure that the child is supported by a parent, relative or support person in the
courtroom.
Defence lawyers also need to be sensitive to the spirit of the POCSO Act and
comply with the provision requiring them to communicate the questions to be put
to the child to the Special Court and not question children directly. They should
be mindful of the prohibition on aggressive questioning or character assassination
under Section 33(6), POCSO Act. The Bar Council of India should consider drafting
rules specifically on the conduct of lawyers in cases of sexual offences.
89 Andhra Pradesh Report, pp.28-29.
90 Delhi Report, p.46.
91 Delhi Report, p.49.
92 Delhi Witness Protection Scheme, 2015, http://dslsa.org/wp-content/uploads/2015/12/DelhiWitness-Protection-Scheme-2015.pdf
93 Statement of Objects and Reasons, POCSO Act, 2012.
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
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Maintaining confidentiality is an essential means to protect the right to privacy
of the child, as well as it encourages the physical and psychological recovery of
the child and ensures that the social reintegration of the child is not hindered by
his or her past. It is important that Special Courts zealously protect the identity
of the child by suppressing the names of the child, parents, relatives, school,
and neighbourhood and substitute it with pseudonyms before the judgment is
pronounced. Care also needs to be taken to also ensure that the identity of the
accused is suppressed in cases in which the accused is related to the child.
Creating a database of interpreters, translators, experts and special educators
is necessary in order to assist the court in recording and assimilating the testimony
of the child, giving due consideration to the developmental needs of the child, and
ensuring the child’s right to be heard. To ensure that the matter is not adjourned
for want of an expert, the SPP can assess the needs of the child in advance or the
needs may be communicated to the SPP and Special Court by a Support Person.
In the absence of dedicated prosecutors exclusively trying POCSO cases, Legal
Aid Lawyers and private lawyers can offer much needed assistance to strengthen
the prosecution. It is important to spread awareness amongst Special Courts and
prosecutors about the recognition of the victim’s right to legal assistance under
the POCSO Act and to urge them to allow legal counsels on behalf of the victim to
assist the prosecution.
The UN Model Law on Justice in Matters involving Child Victims and
Witnesses of Crime94 defined “secondary victimization” to mean “victimization
that occurs not as a direct result of a criminal act but through the response of
institutions and individuals to the victim.” Several of the provisions of the POCSO
Act to be adhered to by the Special Court are aimed at avoiding secondary
victimization. However, in the absence of a person within the system charged
with the responsibility of ensuring that the child is not victimized, the effective
implementation of these provisions depends on the sensitivity of the individual
judges. Article 15 of the Model Law provides for a trained person with professional
skills to support child victims and communicate with and assist children of
different ages and backgrounds from the start of the investigation and during the
entire justice process to “prevent the risk of duress, revictimization and secondary
victimization.” The Support Person envisaged under the POCSO Rules can play
94 UNODC & UNICEF, Justice in Matters involving Child Victims and Witnesses of Crime: Model
Law and Related Commentary, 2009, http://www.refworld.org/docid/4a096ce42.html
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Implementation of the POCSO Act, 2012
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an important role in preventing secondary victimization and ensuring that the
child is supported throughout the journey in the criminal justice system. State
Governments also need to proactively develop a Victim Protection System to offer
support and protection to victims and their families from threats and coercion by
or on behalf of the accused.
Implementation of the POCSO Act, 2012
by Special Courts: Challenges and Issues
29