In a very significant judgment titled Bachpan Bachao Andolan vs Union of India in Writ Petition (Civil) No. 427 of 2022 and cited as 2023INSC745 and also cited as 2023 LiveLaw (SC) 667 that was pronounced as recently as on August 18, 2023 passed an order pertaining to the appointment of support persons under the POCSO Act and their qualifications. What is the real icing on the cake in this notable judgment is the most commendable directions that were issued for framing the guidelines on their appointment to the State of Uttar Pradesh since the case was pertaining to an incident in UP. It must be noted here that a Bench of Apex Court comprising of Hon’ble Mr Justice S Ravindra Bhat and Hon’ble Mr Justice Aravind Kumar was hearing a petition that had been filed by Bachpan Bachao Andolan which had raised issues related to protection provided to victims under the Protection of Children from Sexual Offences (POCSO). It also must be mentioned here that the Apex Court’s order by and large mainly revolves around the appointment and qualifications of support persons and focusing on their critical role in guiding and aiding victims.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice S Ravindra Bhat for a Bench of Apex Court comprising of himself and Hon’ble Mr Justice Aravind Kumar sets the ball rolling by first and foremost putting forth in para 1 that:
The enactment and bringing into force of The Protection of Children from Sexual Offences Act, 2012 (hereafter ‘Act’ or ‘POCSO Act’) was not merely in furtherance of this country’s commitment to international instruments, but its resolve to and attempt at creating a world as secure and as free from fear, for the most innocent and vulnerable section of its citizens, i.e., children and young adults. Behaviour - physical, verbal, and non-verbal, ranging from what discomfits a child to as horrifying as rape and physical sexual abuse have been criminalized. Special mechanisms to provide access to the justice delivery system, and ensure speedy justice, have been devised. Yet, a society’s commitment to such a cause does not cease by mere enactment of any law, but its willingness, and those governing and administering it, to create and ensure effective overall frameworks which support and strengthen its institutions.
To put things in perspective, the Bench envisages in para 2 that:
The present writ petition, arose from the strife caused to an individual victim in her painstaking struggle for justice while navigating the police, investigation stage, and court processes, for the prosecution of an offence under the POCSO Act. At numerous stages, she was revictimized, and faced severe hardships; the issues arising from the individual case, have been dealt with by way of continuing mandamus, wherein this court through a series of orders has monitored the aspects requiring special attention. During those proceedings, it was noticed that the role of a ‘support person’ as envisaged (Introduced first in the Protection of Children from Sexual Offences Rules, 2012 which has since been repealed and substituted by the far more detailed Protection of Children from Sexual Offences Rules, 2020.) in the Protection of Children from Sexual Offences Rules, 2020 (hereafter ‘POCSO 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.
Most notably, the Bench enunciates in para 11 that:
In view of what is required under the POCSO Rules, this court hereby issues the following directions: In furtherance of the mandate of Section 39 of the POCSO Act (Section 39. Guidelines for child to take assistance of experts, etc.- Subject to such rules as may be made in this behalf, the State Government shall prepare guidelines for use of non-governmental organisations, professionals and experts or persons having knowledge of psychology, social work, physical health, mental health and child development to be associated with the pre-trial and trial stage to assist the child.), the Principal Secretary to the Department of Women and Child Welfare, in the State of Uttar Pradesh shall convene a meeting within the next six weeks to review the facts, take action, and frame rules/guidelines as necessary, on the following:
- Assess capabilities in the state with respect to the support persons ecosystem for the selection, appointment, need for special rules/guidelines/Standard Operating Procedure in regard to their appointment/empanelment, training, career advancement and terms and conditions of employment;
- To achieve the purpose in (i) above, require the presence of the Chairperson, of the State Commission for the Protection of Child Rights (SCPCR), Secretary, State Legal Service Authority, senior-most President of a JJB and senior-most Chairperson of a CWC in the state, and a representative from the State Commission for Women;
- Prior to this meeting, details may be called from each District Child Protection Unit (DCPU), as to the list of support persons maintained by it as per Rule 5(1) – which is to include the names of persons or organisations working in the field of child rights or child protection, officials of children’s homes or shelter homes having custody of children, and other eligible persons employed by the DCPU [as prescribed under Rule 5(6)];
- After due consultations, frame such rules, or guidelines, as are necessary, relating to the educational qualifications and/or training required of a support person [over and above the stipulation in Rule 5(6)], and parameters to identify the eligible institutions or NGOs in the state, which can be accredited to depute qualified support persons, and consequently be added to the District Child Protection Unit (DCPU) directory as contemplated in Rule 5(1);
- Ensure that the DCPU or CWC, as the State authorities may deem fit, is tasked with conducting periodic training for all support persons in the DCPU directory to impart knowledge not only on the Act, Rules, and the legal and court procedures involved in prosecuting a POCSO case, but also more fundamentally on communicating and assisting the children of various ages and backgrounds, with the sensitivity it the role demands;
- In the guidelines framed, ensure that a reporting mechanism through appropriate formats are prepared, to enable the support persons to send monthly reports as per Rule 4(12) to the concerned CWC, which should then be compiled and sent to the SCPCR, and the state government;
- Prepare a framework, in the form of a Standard Operating Procedure (SOP) to ensure proper implementation of Rule 12 of the POCSO Rules, 2020, for reporting by the respective CWCs on the specific heads of information collected by them, on monthly basis. This shall include the number of cases, where support persons have been engaged in trials and inquiries throughout the state. The information should also reflect whether they were from the DCPU directory, or with external help from an NGO. Such list shall be reviewed on monthly basis by the SCPCR;
- The SOP prepared, and guidelines framed, are to be communicated to all JJBs and CWCs within a week of its preparation;
ix. Lastly, it is important to acknowledge that support persons who are independent trained professionals, would need to take up tasks which require intensive interactions in often, hostile environments, and consequently deserve to be paid adequate remuneration.
Therefore, though the Rules (As per the Rules, the support persons listed in the District Child Protection Unit directory are to be remunerated emoluments equivalent to a skilled worker as per the Minimum Wages Act, 1948 from the funds maintained under Section 105 of the Juvenile Justice (Care and Protection of Children) Act, 2015 or from other funds placed at the disposal of the DCPU [ref: Rule 5(7) and (8) of POCSO Rules, 2020]) state that such personnel should be paid equivalent to a skilled worker as per the Minimum Wages Act, 1948, this court is of the opinion that the remuneration paid for the duration of the work, should be commensurate to the qualifications and experience of these independent professionals, having regard to the salaries paid to those with comparable qualifications employed by the government, in PSUs, or other institutions run by the government (e.g. hospitals), and this too may be considered in the meeting to be convened by the Principal Secretary.
The Model Guidelines (supra) issued by the Ministry of Women and Child Development, Government of India, albeit prepared prior to the amended.
Most commendably and most forthrightly, the Bench hastens to add in para 12 mandating that:
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. 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 POCSO Rules 2020, offer an effective framework in this regard, it is now left to the State as the biggest stakeholder in it – to ensure its strict implementation, in letter and spirit.
In addition, the Bench then directs in para 13 that:
The State of Uttar Pradesh is hereby directed to file a report of compliance of these directions on or before 04.10.2023. The Ministry of Women and Child Development, Government of India, is requested to bring this judgment to the notice of the NCPCR, which in turn is directed to file – in furtherance of its obligation under Rule 12(1)(c) – a consolidated status report outlining the progress of all States in framing of guidelines as prescribed under Section 39 of the POCSO Act, by 04.10.2023. The Union of India and the NCPCR shall also file an affidavit in this regard before 4.10.2023. A copy of this order shall be marked directly by the Registry to the Union Secretary, Department of Women and Child Development and Chairperson NCPCR, for necessary action.
Finally, the Bench concludes by holding in para 14 that:
List the writ petition next on 06.10.2023.
In a nutshell, we thus see quite distinctly that the Apex Court has very rightly underscored the paramount importance of support persons for victims care and support under the POCSO Act. The most commendable guidelines that have been issued by the top court in this leading case must be certainly implemented in totality. If these commendable guidelines are strictly enforced, there can be no denying that we will only then see that this robust judgment serves the true purpose for which such most laudable guidelines were issued.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
