Case BriefsForeign Courts

Supreme Court of Pakistan: In a significant decision, the 3 Judge Bench of the Court comprising of Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ., while deliberating upon issues revolving around the scientific veracity of virginity tests to ascertain rape and questioning a woman’s sexual history in order to discredit her witness; held that a woman irrespective of her sexual character or reputation, is entitled to equal protection of law. The courts should discontinue the use of painfully intrusive and inappropriate expressions, like “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Such expressions are unconstitutional and illegal.

Issues: In the instant appeal filed by the rape accused, the Court upon perusing the facts and arguments presented by the parties, formulated the following issues-

  • Whether recording sexual history of the victim by carrying out “two-finger test” (TFT) or the “virginity test” has any scientific validation or evidentiary relevance to determine the commission of the sexual assault of rape.
  • Whether “sexual history”, “sexual character” or the very “sexuality” of a rape survivor can be used to paint her as sexually active and unchaste and use this to discredit her credibility.
  • Whether her promiscuous background can be made basis to assume that she must have consented to the act.

Perusing the aforementioned issues, the Court delved into the approaches of modern forensics vis-à-vis TFT and studies conducted by Pakistan’s National Commission on the Status of Women (NCSW) on the point. The Bench also took note of the approach taken by the World Health Organisation, the United Nations and United Nations Entity for Gender Equality and the Empowerment of Women on the matter. It was observed that Modern forensic science thus shows that the two finger test must not be conducted for establishing rape-sexual violence, and the size of the vaginal introitus has no bearing on a case of sexual violence. The status of hymen is also irrelevant because hymen can be torn due to several reasons such as rigorous exercising. An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse. Hymen must therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those findings that are relevant to the episode of sexual assault, i.e., findings such as fresh tears, bleeding, oedema, etc., are to be documented.

Considering the constitutional aspects, the Court stated that dragging sexual history of the rape survivor into the case by making observations about her body, is an insult to the reputation and honour of the rape survivor and violates Article 4(2)(a) of the Constitution of Islamic Republic of Pakistan. reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution, which is an absolute right and not subject to law. “Right to dignity is the crown of fundamental rights under our Constitution and stands at the top, drawing its strength from all the fundamental rights under our Constitution and yet standing alone and tall, making human worth and humanness of a person a far more fundamental a right than the others, a right that is absolutely non-negotiable”.

The Court also pointed out the deep gender biases and inexperience which riddle the medico-legal certificates, like- casually reporting the two finger test, to show that the vagina can admit phallus-like fingers to conclude that the survivor was sexually active at the time of the assault or a ‘virgin”; calling into question the character of the rape survivor etc. The Court stated that such callous approaches are used to support the assumption that a sexually active woman would easily consent for sexual activity with anyone. “Examination of a rape victim by the medical practitioners and use of the medical evidence collected in such examination by the courts should be made only to determine the question whether or not the alleged victim was subjected to rape, and not to determine her virginity or chastity”.

The Court also pointed out that the omission of Article 151(4) Qanun-e-Shahadat Order, 1984 (which allowed the opinion of medical experts as to the virginity tests while deciding rape cases), clearly implies a prohibition on putting questions to a rape victim in cross-examination, and leading any other evidence, about her alleged “general immoral character” for the purpose of impeaching her credibility. The said omission also indicates the legislative intent that in a rape case the accused cannot be allowed to question the complainant about her alleged “general immoral character”.

As a final point, the Bench observed that, “While allowing or disallowing such questions the court must be conscious of the possibility that the accused may have been falsely involved in the case, and should balance the right of the accused to make a full defence and the potential prejudice to the complainant’s rights to dignity and privacy, to keep the scales of justice even”.

[Atif Zareef v. The State, Criminal Appeal No.251/2020, decided on 04-01-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.


Note: The bench of Justice Ayesha A. Malik of Lahore High Court had also made similar observations in Sadaf Aziz v. Federation of Pakistan, wherein she held that virginity tests are invasive and blatantly violate the dignity of a woman.    

Case BriefsDistrict Court

Rouse Avenue Court, New Delhi: Ravindra Kumar Pandey, ACMM, in an essentially significant decision revolving around the  #MeToo movement, acquitted Priya Ramani (accused) and held that no case under Section 500 of the Penal Code, 1860 was found against her.

“Most of the women who suffer abuse do not speak up about it or against it for simple reason “The Shame” or the social stigma attached.”

 “The woman has a right to put her grievance at any platform of her choice and even after decades.”

What led to the filing of the present complaint under Section 500 IPC?

Complainant MJ Akbar, who was a politician moved the present complaint alleging accused Priya Ramani, a Journalist for defaming and damaging the complainant’s reputation by way of tweets, articles, etc. While presenting the set of allegations, complainant stated that the accused had made false, derogatory and malicious imputations against him such as:

I began this piece with my MJ Akbar story. Never named him because he didn’t ‘do’ anything. Lots of women have worse stories about this predator­ maybe they’ll share’, ‘ the media’s biggest sexual predator’. ‘ How many more stories do you need to hear?’, ‘Am glad # MJ Akbar won’t be in the workplace any more but Akbar represent countless men who believe they can say and do whatever they want to women without any consequences’. ‘You’re an expert on obscene phone calls, texts, inappropriate compliments and not taking no for an answer’.

Another allegation that the complainant puts forward is the accused herself, while putting forward the above mentioned quoted defamatory statements, relating to an incident occurred 20 years ago, admits that the complainant did not do anything to her.

Allegations of the Accused as: Figment of her imagination

Complainant goes on to submit that accused’s conduct on taking any action before any authority, with respect to the alleged incident clearly belies the sanctity of the articles and allegation made against the complainant with the intention to malign his reputation.

It was further alleged by the complainant that accused Priya Ramani had resorted to a series of maliciously fabricated allegations, which was diabolically and viciously spread by her by using media.

All of the above caused great humiliation and damaged the complainant’s goodwill and reputation in his social circles and on the political stage.

On the basis of pre-summoning evidence led by the complainant, accused Priya Ramani was summoned by this Court for commission of offence punishable under Section 500 IPC.

Priya Ramani’s Defence

Accused took the defence that she made the publication of the articles and tweets in good faith for protection for other women’s interest in general regarding sexual harassment at the workplace. Accused contended that her publication covered under the exception 1,3 and 9 of Section 499 IPC.

Further, it was added that the complainant was not a man of stellar and impeccable reputation and the accused did not defame him by publishing the tweets and article.

Analysis and Decision

It cannot be ignored that most of the time, the offence of sexual ­harassment and sexual abuse is committed in the close doors or privately. Sometimes the victims herself does not understand what is happening to them or what is happening to them is wrong. Despite how well respected some persons are in society, they in their personal lives, could show extreme cruelty to the females.

While analysing the facts and circumstances of the case, Bench considered the systematic abuse at the workplace due to the lack of mechanism to redress the grievance of sexual harassment at the time of the incident of sexual harassment against the accused Priya Ramani and witness Ghazala Wahab prior to the enactment of The Sexual­ Harassment of women at workplace ( Prevention, Prohibition and Redressal) Act, 2013, or their option to not lodge the complaint of sexual ­harassment due to the social stigma attached with the sexual ­harassment of women.

Unaware of what is happening

Bench while addressing the issue of sexual abuse expressed that victims of sexual abuse not even speak a word about abuse for many years because sometimes she herself has no idea that she is a victim of abuse.

“…victim may keep believing that she is at fault and victim may live with that shame for years or for decades.”

Defamation complaint against sexual abuse victims

Court stated that woman cannot be punished for raising voice against the sexual­ abuse on the pretext of criminal complaint of defamation as the right of reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in Constitution of India under Article 21 and right of equality before the law and equal protection of the law as guaranteed under Article 14 of the Constitution.

While concluding with its decision, Bench asserted that the ‘glass ceiling’ will not prevent the Indian Women as a road lock for their advancement in society, if equal opportunity and social protection be given to them.

Therefore, while acquitting Priya Ramani of the offence under Section 500 IPC, Court directed her to furnish bail bonds and surety bonds in terms of Section 437-A CrPC. [Mobashar Jawed Akbar v. Priya Ramani, Complaint Case no. 05 of 2019, decided on 17-02-2021]

Case BriefsForeign Courts

Lahore High Court: While deliberating upon the writ petitions challenging the use and conduct of ‘virginity tests’ especially “Two-finger Test” and “Hymen Examination” in cases of rape and sexual abuse, Ayesha A. Malik, J., held that the virginity tests, carried out for the purposes of ascertaining the virginity of female rape or sexual abuse victim, is unscientific and has no medical basis, therefore it is of no forensic value in cases of sexual violence. It was further held that the virginity tests offend the personal dignity of the female victim and therefore is against the right to life and right to dignity enshrined in Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973.

 Contentions: The petitions were brought before the Court by a group of diverse women, who have been working in the public sphere and one of the members of the National Assembly of Pakistan. They stated before the Court that the virginity tests are done upon a victim in order to ascertain whether they are sexually active. The petitioners put forth the following contentions –

  • There is no medical or scientific basis to continue with virginity testing; that it violates the fundamental rights of the female victims such that it denies the female victim her fundamental rights of dignity and privacy that she is guaranteed under the Constitution.
  • After the omission of Section 151 (4) of the Qanun-e-Shahadat Order, 1984 under the Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016, tests are irrelevant for the charge of rape or sexual abuse. The virginity tests are neither necessary nor reliable for the purpose of investigation into the incident of rape or sexual abuse.
  • Even though the consent of the victim is obtained before conducting the test, however the victim is neither aware of the reasons for carrying out either of the tests nor is she informed properly, with sufficient sensitivity, as to what the examination entails.
  • The medico-legal examination reports rely on words such as “habituated to sex” or “not a virgin” which are irrelevant for the purposes of the incident under investigation and such derogatory language stigmatizes the victim, causing social and personal trauma. There is not enough training with reference to the female medical officers appointed, who carry out the virginity tests and fill in the medico-legal report.
  • Pakistan is a signatory to several international treaties like UDHR, ICCPR, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 which denounce virginity testing. Moreover, Pakistan has also signed and ratified Convention Against Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW), which prohibits all forms of discrimination against women and declares the two-finger test as discriminatory such that it amounts to a denial of rights to female victims of rape on the basis of her gender.

The respondents (Federation of Pakistan and Province of Punjab) did not dispute the contentions of the Petitioners to the extent that the two-finger test should not be conducted. They stated that the matter is under consideration with the competent authority and guidelines are in the process to be framed. It was clarified that the two-finger test is not conducted unless it is deemed necessary and that in cases of minor girls, it is mandatory to inspect the hymen in detail to determine whether it is intact and if not then the nature of the injury.

Upon perusal of the petitioners’ contentions and statements provided by the respondents vis-à-vis the prevalent scenario and after detailed scrutiny of the relevant Guidelines/ SOPs; the Court observed the Guidelines for the Examination of Female Survivors/Victims of Sexual Abuse, 2020 still calls for a virginity test albeit by confusing the issue rather forbidding it (it allows a “per-vaginum examination” where required and per-vaginum examination is understood to mean the two finger test). It was noted that a bare reading of 2020 Guidelines makes it clear that the process of virginity testing through two fingers or hymen examination are standardized and form the basis of the medical officer’s opinion or the court’s opinion on the virtue and character of the victim. Regarding the use of phrases like “habituated to sex” and “not a virgin” in medico-legal reports the Court noted that, “Often enough the opinion of the medical officer is carried into the judgments of the court and language such ashabituated to sex”, “women of easy virtue”, “habitual to sexual intercourse”, “indulging in sexual activities” are used to describe the victim. The basis being that a woman habituated to sex is likely to have raised a false charge of rape or sexual abuse”.

The High Court also referred to several decisions rendered by the Indian courts, most notably the Supreme Court of India’s judgment in Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that- the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity; therefore, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent. Judgments delivered by Allahabad HC in Akhtar v. State of U.P., 2014 SCC OnLine All 8922 and Gujarat HC in State of Gujarat v. Rameshchandra Ramabhai Panchal, 2020 SCC OnLine Guj 114  were also referred to.

It was also noted that Pakistan has signed and ratified several relevant International Treaties which cast an obligation upon the Government to ensure that all necessary steps are taken to prevent carrying out virginity testing, as globally it is accepted that virginity testing does not establish the offence of rape or sexual abuse nor does past sexual conduct have any relevance in the medico-legal examination which aims to collect evidence on the charge of sexual violence.

Judge noted that, “Virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases. It is a humiliating practice. If the victim, is found to not be a virgin, it cannot and does not suggest that she was not raped or sexually abused. What it does is place the victim on trial in place of the accused and shifts the focus on her virginity status. In this regard, the victim’s sexual behaviour is totally irrelevant as even the most promiscuous victim does not deserve to be raped, nor should the incident of sexual violence be decided on the basis of a virginity test. It is a blatant violation of the dignity of a woman. The conclusion drawn from these tests about a woman’s sexual history and character is a direct attack on her dignity and leads to adverse effects on the social and cultural standing of a victim”.

With the aforementioned observations, the Court made the following declarations-

  • Virginity tests are discriminatory against the female victim as they are carried out on the basis of their gender, therefore offends Article 25 of the Constitution, 1973.
  • To the extent that the 2020 Guidelines, SOPs and the 2015 Instructions mandate the virginity tests are declared to be illegal and against the Constitution and the Federation and Provincial Government should take necessary steps to ensure that virginity tests are not carried out in medico-legal examination of the victims of rape and sexual abuse.
  • The Provincial Government should devise appropriate medico-legal protocols and guidelines, along with standard operating procedures, in line with international practice that recognize and manage sensitively the care of victims of sexual violence.

[Sadaf Aziz v. Federation of Pakistan, WP No. 13537 of 2020, decided on 04-01-2021]


Sucheta Sarkar, Editorial Assistant has put this story together


Image Credits: DAWN

Case BriefsHigh Courts

Bombay High Court: Prithviraj K. Chavan, J., while addressing the present matter throws light on the aspect of indulging in prostitution and the purpose and object of the Immoral Traffic (Prevention) Act, 1956.

PROSTITUTION

Petitioners are victims of a crime registered by the Police under the Immoral Traffic (Prevention) Act, 1956, alleged to have been compelled to involve themselves in prostitution, their identity, therefore, needs to be concealed. Hence the petitioners are to be referred to as “victims (A), (B) and (C)”.

BACKGROUND

A police constable approached the office of Social Service Branch, Mumbai informing that he was informed by P.I. Mr Revle that a person by the name of Nijamuddin Khan, a pimp provides women for prostitution at a gues house in Malad.

On receiving the above-stated information, a trap was arranged and the raiding team left for the spot after which victim girls were arrested and taken into custody.

The victim girls were produced before the Metropolitan Magistrate. Intermediate custody of the girls was given to Navjeevan Mahila Vasti Griha, Deonar, Mumbai, and were allowed to contact their family members/parents.

In the report filed by the Probation officer, it was revealed that the victim girls belonged to the “Bediya” community.

BEDIYA COMMUNITY

A custom prevails in the community wherein a girl, after attaining puberty is sent for prostitution.

The parents of the victims were aware that the victims are engaged in prostitution, meaning thereby, the parents themselves are allowing to indulge in prostitution as a profession for their daughters’ and, therefore, the learned Magistrate observed that it would not be safe to hand over the custody of the victims to their mothers.

Since the victims were not safe with their parents as the parents have no objection for the victim girls to live their life as prostitutes, the victims were directed to be detained in the shelter home wherein the Counsellor would counsel the victims to restrain from prostitution.

Magistrate observed that the victim girls need to sent to their native place Kanpur.

Magistrate had passed a detaining order for a period of one year for the care, protection, shelter and vocational training in the subject of their liking, in the Navjeevan Mahila Vastigruha, Deonar, Mumbai or with any other institution, which has been challenged in the present petition.

ANALYSIS & DECISION

Bench observed that, there were no charges qua the victims that they were carrying prostitution in public.

The inquiry as contemplated under Section 17(2) of the said Act appeared to have been carried in a very casual manner.

Section 17(4) implies that an order under the said Section can only be passed subject to the provision of sub-section (5) of Section 17 of the said Act. Sub-section (5) contemplates that while discharging the function under sub-section (2), the Magistrate will have to summon a panel of 5 respectable persons, 3 of whom shall, wherever practicable, be women to assist him in that regard.

Purpose and Object of the Act is not to abolish the prostitution or the prostitute.

There is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.

What is punishable under the Act is sexual exploitation or abuse of person for commercial purpose and to earn the bread thereby, except where a person is carrying on prostitution in a public place as provided in Section 7 or when a person is found soliciting or seducing another person in view of Section 8 of the said Act.

BROTHEL

Bench added in regard to the present matter that there is nothing on record to show that the petitioners were seducing any person for the purpose of prostitution nor there is any material to show that they were running a brothel.

Magistrate has been swayed away while passing the impugned order by the fact that the petitioners belong to a particular caste.

Hence before passing the impugned order magistrate ought to have considered the willingness and consent of the victims before ordering their detention in the protective home.

Therefore, the same needs to be quashed.

“…victims being major, their fundamental rights to move from one place to another place or to reside at a place of their choice and choose their vocation has to be considered. They cannot be subjected to unnecessary detention contrary to their wish.”

The present matter is also not something where setting the victim free would cause some danger to society. It is nearly one year that the victims have been detained in the corrective home against their wish and, therefore, for the reasons stated herein, they need to be released. [Kajal Mukesh Singh v. State of Maharashtra, 2020 SCC OnLine Bom 954, decided on 24-09-2020]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and R.C. Khulbe, J., dismissed a writ petition that was filed questioning that whether sole testimony of the victim of sexual abuse was sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry and whether dismissal of service imposed on the perpetrator as a consequence thereof was grossly disproportionate? The Court observed that sole testimony, of the victim of sexual abuse, was sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry, if it was found reliable.

The petitioner was nominated, for the para-medic course for a three day period as a guest instructor for an outdoor exercise with trainees, for conducting a half day theory class, a half night march exercise at the S.S.B. Academy Gwaldum, and to impart them training on military topics such as night navigation and map reading. After completion of the night training exercise, the petitioner, along with several other members including the two lady trainees, sat in the cabin of a truck which was coming back to Gwaldum station. It is in the cabin of the truck that the petitioner is said to have molested one of the lady trainees, and to have sexually harassed her.

The Counsel for the petitioner, Sanjay Raturi, contended that he was held guilty on the self-serving sole testimony of the complainant (Trainee); no other witness had corroborated the complainant’s testimony; and the complainant’s self-serving evidence cannot form the basis for holding the petitioner guilty of the charges.

The Court noted the well settled principle laid down in various Supreme Court decisions that an evidence of the victim of sexual assault is enough for conviction, and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The Bench observed that:

As the sole testimony of a prosecutrix, in a criminal case involving sexual harassment and molestation, would suffice if it is otherwise reliable, there is no justifiable reason not to accept the sole testimony of a victim, of sexual harassment and molestation, in a departmental inquiry as the enquiry held by a domestic Tribunal is not, unlike a Criminal Court, governed by the strict and technical rules of the Evidence Act. A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probabilities, and not proof beyond reasonable doubt. In the present case, the testimony of the complainant gives graphic and shocking details of acts of sexual molestation perpetrated by the petitioner on her so there isn’t any reason as to why the Enquiry Committee should be faulted for largely relying on the testimony of the complainant and there is no reason to interfere in the enquiry. [Bhuwan Chandra Pandey v. Union of India, 2020 SCC OnLine Utt 268 , decided on 15-06-2020]

Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., allowed medical termination of 24 weeks pregnancy of 16 year old girl victim of rape & sexual abuse.

Petitioner had sought for medical termination of 23 weeks pregnancy of his daughter who is 16 years old and is a victim of rape and sexual abuse.

In respect of the offence of rape and sexual abuse, an FIR has been registered by the Petitioner with Paud Police Station, Pune.

Petitioner’s case proceeds on the footing that his daughter, being of a tender age of 16 years, is likely to suffer mental and physical trauma due to unwanted and dangerous pregnancy.

So also, it is submitted that continuation of pregnancy at this tender age of 16 years is likely to leave a maternal mortality and in the premises, permission of this court is sought for medical termination of pregnancy.

Court referred the case on 5th May, 2020 to a medical committee. Medical Board recommended termination of pregnancy in view of her history and teenage pregnancy carrying higher mental and physical morbidity and mortality.

Thus, Bench held that considering that despite being aware of the dangers of continuation of pregnancy as well as its termination, Petitioner and his daughter having expressed a keen desire before the Board to terminate the pregnancy and considering the specific opinion of the Medical Board, it is imperative to permit the medical termination of pregnancy.

Court also stated that in view of the same being a result of rape and sexual abuse, appropriate directions for preservation of tissue and blood sample of the fetus for carrying out requisite medical tests including DNA finger printing /mapping would have to be passed.

Bench further observed that, in case the child born is alive and the Petitioner and his daughter are not willing to or not in a position to take responsibility of such child, the State and its agencies will have to assume full responsibility for such child.[Pramod A. Solanke v. Dean of B.J. Govt. Medical College & Sasoon Hospital,  2020 SCC OnLine Bom 639 , decided on 08-05-2020]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of K. K. Wickremasinghe and K. Priyantha Fernando, JJ., allowed an appeal which was filed to set aside the judgment of High Court.

The accused-appellant was indicted in the High Court for committing grave sexual abuse in an offence punishable under Section 365B(2)(b) of the Penal Code, and after pleading not guilty he stood for trial and case was transferred to the High Court. The high court convicted the appellant for the charge and imposed four years of rigorous imprisonment and a fine of Rs 25,000. Being aggrieved by the said conviction and the sentence the appellant preferred this appeal. As per the prosecutrix she lived with her parents and her grandmother and one day when she came back from school she went to her grandmother’s house for having lunch which was 25-30 feet away from her house and while returning from there the accused invited her to his house, promising to give biscuits. After taking her inside he took her to the kitchen, where the appellant sat down on a chair put the small child who was in his hands on the floor and then he took the prosecutrix on to his lap and removed her skirt and the underpants, and placed his penis between her thighs and sexually abused her. The prosecutrix had run back to her grandmother’s house and informed the incident to her grandmother after which her grandmother yelled at the accused and then washed off the prosecutrix legs with water and white foamy liquid, thereafter a complaint was lodged by them against the accused.

The counsel for the appellant Anil Silva and AAL Isuru Jayawardhena contended that there was a belated complaint in the instant case, the High Court Judge failed to consider whether there was a reason for Mary Theresa to fabricate a case against the appellant and that the High Court Judge had misdirected himself as regards to the burden of proof. There were a number of contradictions in the statements given by the side of the prosecution.

The Court while allowing the appeal held that Court should not act on the sole testimony of a prosecutrix if it appears to be unreliable and inconsistent and as the prosecutrix was only 09 years old at the time of the incident and therefore, it is natural that there could be mistakes made by her in evidence. [Rathnayake Mudiyanselage Gnanasena Rathnayake v. Attorney General, C.A. Case No: CA-HCC-0070 of 2015, decided on 03-12-2019]

Legislation UpdatesNotifications

The National Human Rights Commission, NHRC has taken suo motu cognizance of a media report that 15 minor girls have been rescued from a Shelter Home in Tiruvannamalai district of Tamil Nadu following complaints of sexual abuse against the In-Charge of the Home. The In-Charge of the Shelter Home has been arrested under the Protection of Children from Sexual Offences (POCSO) Act. The rescued girls have been shifted to a government facility and further investigation in the case is underway.

The Commission has observed that the contents of the news report, if true, amount to violation of human rights of the victim minor girls. Accordingly, it has issued notices to the Chief Secretary and the Director General of Police, Tamil Nadu calling for a detailed report in the matter, within four weeks including action taken against the guilty and steps taken for relief, rehabilitation and counseling of the victims.

It has also observed that this is not the single incident of its kind which has come to the notice of the Commission. In the recent past the Commission has come across several incidents of such nature, occurred in various parts of the country, where the girl inmates have been sexually abused in custody either by staff or the persons who run the Shelter Homes. The incidents of sexual abuse of innocent minor girls at the hands of their custodian, are shameful and also call for review of the monitoring mechanism by the state authorities. The police and the social welfare departments of the states have to come together to ensure strict compliance of the procedure laid down under law with regard to running Shelter Homes, especially for the women.

According to the media report, carried on the 30th January, 2019, the District Collector, reportedly visited the Home and sealed the premises. The issue came to light as some of the inmates informed the authorities about alleged sexual abuse by the accused, during a safety campaign. Reportedly, the victims have alleged in writings that the In-Charge of the Home, made them watch pornographic content before abusing them.

[Press Release dt.: 01-02-2019]

NHRC

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B. Lokur, Deepak Gupta and KM Joseph, JJ., in its order regarding the horrific chain of events that transpired in the shelter home in State of Bihar, had issued a few directions in its earlier order and has again expressed deep concern in this regard on hearing out the submissions of the learned Amicus Curiae.

In the present order, the Supreme Court bench clearly stated that the point of concern majorly is about the protection of children, particularly girls in homes run by NGOs. The learned Amicus Curiae has submitted that:

  • NIMHANS, Bengaluru should address the mental and psychiatric health of the children in shelter home.
  • Clinical and Medical aspect to be addressed by All India Institute of Medical Sciences (AIIMS), Patna.
  • Rehabilitation and re-integration of the children should be left to be addressed by TISS.

All the above-stated suggestions of the Amicus Curiae were accepted by the Supreme Court and the bench directed all the above authorities to prepare a brief course of action and place it on record. Further, the Court required the Ministry of Women and Child Development to inform the steps to be taken in order to ensure that the sexual abuse of children does not take place in the shelter homes and other child care homes across the country.

The Bench reiterated its discussion in regard to no publication of the photographs of the victims of sexual abuse in electronic, print and social media. Also, no interviews of such victims should take place. Another point noted was the revelation of the victim’s identity by one of the accused’s wife in the Muzaffarpur incident for which Amicus Curiae shall disclose all the other names who have done so, and in accordance to law appropriate action shall be taken against them.

The matter is listed for 14-08-2018. [Sampurna Behrua v. Union of India, 2018 SCC OnLine SC 928, Order dated 07-08-2018]