Source: Supreme Court

Why in News?

The Supreme Court recently directed all States and Union Territories to strictly enforce the Protection of Children from Sexual Offences (POCSO) Act,2012 and the Juvenile Justice (Care and Protection) Act, 2015,(JJ Act) to better protect victims of sexual offences.

• This came in response to the State of West Bengal's failure to adequately care for a victim under these laws.
• The Court specifically emphasized the need for immediate reporting of offenses to the Child Welfare Committee and Special Court, as mandated by Section 19(6) of the POCSO Act.
• Additionally, the Court criticized the Calcutta High Court's suggestion to amend the POCSO Act to decriminalize consensual sex among older adolescents, rejecting the idea of exceptions for "non-exploitative" acts.

What was the Background of In RE: Right to Privacy of Adolescents?

• The case involves a criminal appeal (no. 1451 of 2024) filed by the State of West Bengal against a judgment passed by the High Court of Judicature at Calcutta on 18^th October 2023.
• The original case concerned an accused who was convicted by a Special Judge under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for offenses under Section 6 of the POCSO Act and Sections 363 and 366 of the Indian Penal Code,1860 (IPC).
• The victim was a 14-year-old girl at the time of the incident.
• The victim's mother filed a First Information Report (FIR) on 29^th May 2018, stating that her daughter had left home on 20^th May 2018, without informing anyone.
• It was alleged that the accused, about 25 years old at the time, had enticed the victim to leave her house with his two sisters' help.
• The victim gave birth to a female child, and the accused is admittedly the biological father of the child.
• There was a significant delay in the investigation, with the accused being arrested on 19^th December 2021.
• The chargesheet was filed on 27^th January 2022, charging the accused with offenses under the POCSO Act, IPC, and the Prohibition of Child Marriage Act, 2006.
• The prosecution examined seven witnesses during the trial.
• The victim claimed that she had married the accused and left her house of her own will. She expressed a desire to continue living with the accused.
• The victim's mother produced the victim's birth certificate as evidence of her age.
• The victim had been kept in Narendrapur Sanlaap home for some time before returning to her mother's house, after which she went back to live with the accused.
• Medical evidence confirmed that the accused had physical relations with the victim, resulting in the birth of a child.
• The accused was eventually released on bail after his arrest in December 2021.

What were the Court’s Observations?

• The Supreme Court found that the Calcutta High Court's judgment contained irrelevant observations, introducing legally baseless concepts like "non-exploitative sexual acts" and "older adolescents" in relation to POCSO Act offenses.
  • The High Court erroneously exceeded its jurisdiction by acquitting the accused despite proven guilt by using powers under Article 226 and Section 482 of Code of Criminal Proceedure,1973 CrPC, .
• The Supreme Court restored the conviction of the accused under Sections 376(2)(n) and 376(3) of the IPC and Section 6 of the POCSO Act, emphasizing that a sexual act against a 14-year-old cannot be termed "non-exploitative" regardless of the current circumstances.
• The Court clarified that under Section 375 read with Section 376(2)(n) of the IPC, the offense is established notwithstanding any consensual relationship.
  • It reaffirmed that serious crimes like rape cannot be quashed due to a settlement between the offender and victim, By Gian Singh v. State of Punjab,2012.
• The Supreme Court noted the State machinery's failure to implement Section 19(6) of the POCSO Act and relevant sections of the Juvenile Justice Act, which would have provided necessary care and protection to the victim.
  • This failure was deemed a violation of the victim's fundamental rights under Article 21 of the Constitution.
• The Court directed all States and Union Territories to strictly implement the provisions Section 19(6) of the POCSO Act and Juvenile Justice Act to ensure proper care and protection of child victims.
  • It also mandated the creation of an expert committee to assist the victim and review support measures.
• The Supreme Court recommends introspection and course correction by all stakeholders, including the judiciary, in handling POCSO Act cases.
  • It directed States to consider framing Rules for Section 46 of the Juvenile Justice Act, dealing with aftercare of children leaving institutional care.
• The Court emphasized that failure to provide immediate aid and support to POCSO Act victims violates their fundamental rights under Article 21 of the Constitution, highlighting the need for a victim-centric approach in such cases.

What is Section 19(6) of POSCO?

• Under Section 19(6) the Special Juvenile Police Unit or local police have a mandatory duty to report cases falling under the POCSO Act to specific authorities.
• The authorities to be informed are:
  • a) The Child Welfare Committee
  • b) The Special Court, or
  • c) The Court of Session (where no Special Court has been designated)
• This reporting must be done without unnecessary delay and within a maximum period of twenty-four hours from the time the matter comes to their attention.
• The report must include:
  • a) Details of the matter (i.e., the alleged offense)
  • b) An assessment of the child's need for care and protection
  • c) Information on the steps already taken regarding the child's care and protection
• This provision immediately considers the child's need for care and protection, making it a crucial part of the initial reporting process.
• This reporting is a procedural mandate, ensuring that appropriate authorities are promptly involved in cases involving sexual offenses against children.
• The provision serves to initiate legal proceedings and ensure the rapid implementation of child protection measures.

What is Child Welfare Committee under JJ Act,2015

About:

• Chapter V, Section 27 of the Juvenile Justice (Care and Protection of Children) Act, 2015 deals with the Child Welfare Committee
• Every district must have at least one Child Welfare Committee, constituted by the State Government, to handle matters related to children in need of care and protection.
• Each Committee must consist of a Chairperson and four members, with at least one woman and one expert on children's issues. All members must receive induction training within two months of appointment.
• Committee members must have specific educational qualifications in fields related to child welfare and at least seven years of experience in children's health, education, or welfare activities.
• Individuals with a history of human rights violations, convictions of moral turpitude, or involvement in child abuse are ineligible for Committee membership.
• Committee members are appointed for a maximum term of three years, and their appointment can be terminated by the State Government for misconduct, conviction, or failure to attend meetings regularly.
• The Committee functions as a Bench with powers equivalent to those of a Metropolitan Magistrate or Judicial Magistrate of First Class under the Code of Criminal Procedure, 1973.
• The District Magistrate serves as the grievance redressal authority for complaints about the Committee's functioning and conducts quarterly reviews of the Committee's performance

Power of Committee

• Section 29 deals with Powers of Committee.
• The Committee shall have the authority to dispose of cases for the care, protection, treatment, development and rehabilitation of children in need of care and protection, as well as to provide for their basic needs and protection.
• Where a Committee has been constituted for any area, such Committee shall, notwithstanding anything contained in any other law for the time being in force, but save as otherwise expressly provided in this Act, have the power to deal exclusively with all proceedings under this Act relating to children in need of care and protection.

Function of Committee

• Section 30 deals with the functions and responsibilities of the Committee.
• The Committee is responsible for overseeing and receiving children presented before it, conducting inquiries into their safety and well-being, and authorizing appropriate care arrangements under the Act.
• Committe may instruct Child Welfare Officers, probation officers, District Child Protection Units, or NGOs to carry out social investigations and submit reports.
• The Committee has the authority to place children in foster care, ensure their care and rehabilitation through individualized plans, and select suitable registered institutions based on the child's needs.
• The Committee is required to inspect residential facilities for children at least twice a month, certify surrender deeds, and ensure that parents have adequate time to reconsider.
• It must make efforts to reunite abandoned or lost children with their families and declare orphaned, abandoned, and surrendered children legally free for adoption after proper inquiry.
• The Committee can suo motu initiate cases with a decision from at least three members and is responsible for rehabilitating sexually abused children as reported under the Protection of Children from Sexual Offences Act, 2012.
• The Committee must handle cases referred to by the Board, coordinate with police, labor departments, and other childcare agencies, inquire into child abuse complaints in care institutions, and ensure children receive appropriate legal services.

Inquiry by Committee

• Section 36 deals with inquiry
• The Committee shall hold an inquiry upon production of a child or receipt of a report under section 31.
• The Committee may order a child to be sent to a children's home, fit facility, or fit person, and initiate a social investigation.
• Children under six years who are orphaned, surrendered, or abandoned shall be placed in a Specialised Adoption Agency where social investigations must also be completed within fifteen days.
• The Committee must pass a final order within four months of the child's first production.
• For orphan, abandoned, or surrendered children, inquiry completion time is specified in section 38.
• If a child is found to have no family or support, the Committee may send them to appropriate care facilities based on their age and needs.
• The situation of children placed in care facilities or with fit persons/families shall be reviewed periodically by the Committee and also
• The District Magistrate shall review case pendency and may direct the Committee to take remedial measures also review to the State Government, which may constitute additional Committees if needed and Committee must submit quarterly reports on case disposals and pendency to the District Magistrate.
• If pendency remains unaddressed for three months after directions, the State Government shall terminate the Committee and constitute a new one.
• The State Government shall maintain a standing panel of eligible persons for immediate appointment to a new Committee.
• In case of delay in constituting a new Committee, the Child Welfare Committee of a nearby district shall assume responsibility.