Bombay High Court’s comments on consent in POCSO cases can demoralise survivors, adversely affect trial outcomes
In a recent ruling, Justice Milind Jadhav of the Bombay High Court granted bail to an accused who had been in jail for over five years for the rape of a 14-year-old girl in 2019. The Bombay High Court’s decision should be applauded as it is in keeping with the Supreme Court’s longstanding principle that “bail is the rule and jail is the exception”. However, the judge’s remarks regarding consent and other aspects of the case appear overreaching. These comments raise concerns about the interpretation of the judiciary of the Protection of Children from Sexual Offences (POCSO) Act.
The case is of a 14-year-old girl who had gone to visit her married sister and did not return after the visit. The girl’s father found her four days later with the accused, and an FIR under the POCSO Act was lodged.
The POCSO Act, passed in 2012, was a significant step in protecting children from sexual abuse and exploitation. The Act raised the age of consent to 18 years, ensuring that minors cannot legally consent to any form of sexual activity. This change aimed at aligning the legal definition of a child with the understanding that individuals under 18 are not mentally or emotionally prepared to make informed decisions about sexual matters, thus protecting them from coercion, manipulation, or abuse. The Act also introduced mandatory reporting, placing a duty on every individual to report incidents of sexual offences against children.
The Act has several beneficial procedures to be followed at police stations and courts, including fast-track trials where the child’s testimony is to be recorded within two months and the trial to be concluded within one year. Victims are provided a support person to avoid re-traumatisation and to ensure rehabilitation. The POCSO Act has been amended several times since, but mostly to increase the severity of punishments, including the introduction of the death penalty.
Despite the noble intentions of the POCSO Act, the reality on the ground is far from ideal. A large number of cases remain unreported especially when the accused is a known person, and even when cases are reported, victims traverse a difficult legal journey and endure significant trauma, often receiving little or no support.
In this context, the Bombay High Court’s comments are concerning. Justice Jadhav noted that although the girl was a minor, “the facts of the present case indicate that she (the 14-year-old victim) had sufficient knowledge and capacity to know the full import of her actions.” The judge further remarked, “The girl was in love with the man, and had voluntarily stayed with him and had a consensual encounter”.
These comments are problematic because they misinterpret the law regarding consent. The POCSO Act makes it unequivocally clear that minors cannot consent to any sexual activity regardless of the circumstances. Victim blaming and claiming that the victim consented to the sexual act is the most commonly used defence in rape trials. POCSO Act puts the onus of proof on the accused once the prosecution establishes a prima facie case. The premature comments of the judge on the merits of the case based solely on the FIR statement and medical reports will have a far-reaching impact, particularly for lower courts.
Anyone working with child victims of sexual abuse knows the trauma they have to go through on the day of reporting. FIR, medical examinations and statements before the child welfare committee often have contradictions as the child is dragged to all these agencies in the first 24 hours and has to repeat her story. Pressure from the police, her own family as well as the accused’s makes the victim, already terrified and scarred, extremely vulnerable. Contradictions in the victim’s statements should have been evaluated by the trial court, which is in the best position to examine all evidence.
The judge’s comments on the non-violent nature of the offence and the absence of criminal antecedents in the accused’s record are also flawed as in most cases of sexual abuse the incidents are rarely violent. The harm caused by sexual abuse, regardless of physical violence, is profound and life-altering for the victim. The judge’s reasoning reflects an outdated and overly simplistic understanding of sexual offences.
At the same time, the Bombay High Court missed an important opportunity to address the issue of severe delay in the trial. In this instance, the case has been pending for over five years even though the POCSO Act mandates that trials be completed within one year. As of 2022, the Maharashtra Crime Records reported a pendency of over 38,000 cases with courts managing to dispose of only 5 per cent of pending cases each year. These delays cause a huge challenge for victims, who are forced to live with the uncertainty of prolonged legal proceedings.
Lastly, Justice Jadhav mentions that the Supreme Court has supported granting bail to young offenders in specific circumstances to avoid the regressive influences of prolonged imprisonment. Yet, he fails to pull up the lower court as to why the accused who had filed four bail applications, two of them in person, in the sessions court, was not granted bail.
Higher courts must interpret the law as it stands, ensuring that justice is served based on existing statutes and legal principles. It is the responsibility of Parliament to change or amend the law if it is deemed inadequate or outdated. It would be prudent for high courts to avoid making overreaching comments about victims and the merits of a case while granting bail as they demoralise victims and send a wrong message to the lower courts. These comments may also adversely impact the outcome of the trial.
Dmello is director and Agnes founder of Majlis, a legal centre for women and children. Views are personal
Majlis’ team of women lawyers, social workers provide *legal and social support* to women and children facing sexual and domestic violence. Call 07506732641 Mon-Fri 11 am to 7 pm.
https://indianexpress.com/article/opinion/columns/taking-a-backward-step-9856713
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