support person in child sexual abuse cases

Supreme Court: The bench of S. Ravindra Bhat and Aravind Kumar, JJ has taken note of the fact that 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 Court observed that,

“From the point of registering an FIR/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 (JJB), the concerned Child Welfare Committee (CWC), 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.”

The victim, in the case at hand, faced painstaking struggle for justice while navigating the police, investigation stage, and court processes, for the prosecution of an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). At numerous stages, she was revictimized, and faced severe hardships.

Noticing the need for support at various stages, the role of a ‘support person’ was institutionalised in the POCSO Rules, 2020, 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.

“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.”

Hence, in the furtherance of the mandate of Section 39 of POCSO Act, the Court directed the Principal Secretary to the Department of Women and Child Welfare, in the State of Uttar Pradesh, to convene a meeting within the next six weeks to review the facts, take action, and frame rules/guidelines as necessary, on the following:

i. 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;

ii. 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;

iii. 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)];

iv. 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);

v. 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;

vi. 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;

vii. 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;

viii. 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 Rules8 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 State of Uttar Pradesh has been directed to file a report of compliance of these directions on or before 04.10.2023. The National Commission for the Protection of Child Rights (NCPCR) has been directed to file a consolidated status report outlining the progress of all States in framing of guidelines. The matter will now be taken up on 6.10.2023.

[Bachpan Bachao Andolan v. Union of India, 2023 SCC OnLine SC 1031, decided on 18.08.2023]

Judgment authored by Justice S. Ravindra Bhat

Know Thy Judge | Justice S. Ravindra Bhat

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