REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL …

1 1 REPORTABLEIN THE SUPREME COURT OF INDIACIVIL ORIGINAL JURISDICTIONWRIT PETITION (C) OF 2018 ALAKH ALOK SRIVASTAVA ..PETITIONERVERSUSUNION OF INDIA & ORS..RESPONDENTS J U D G M E N TDipak Misra, CJI. The instant Writ Petition initially raised two issues, first, thetreatment of an eight month old female child who had become avictim of a crime committed under the Protection of Childrenfrom sexual offences Act, 2012 (for brevity, the POCSO Act ) andthe second, speedy trial and monitoring of the trials under thePOCSO Act in a child friendly COURT regard being had to the letterand spirit of the provisions contained in the said The first prayer was dealt with vide orders dated 31stJanuary, 2018, 1st February, 2018 and 12th March, 2018. It isnecessary to note here that regard being had to the healthcondition of the child, a team of doctors from the All IndiaInstitute of Medical Sciences (AIIMS) was sent to visit the patientat Kalawati Saran Children Hospital.

2 That apart, a direction wasissued to the authorities of the Delhi State Legal ServicesAuthority to accompany the team of doctors. 3. A team of doctors along with the competent authority of theDelhi State Legal Services Authority examined the victim andsubmitted a report. The relevant part of the report reads asfollows: Examination revealed 8 month old female infantalert and active, sharing bed with another girl was breast feeding with normal vital signs (HR120/min, Respiratory rate 32/min, no distress,saturation 98% on room air, temperature C).Her weight was kilogram and physicalappearance looks normal. Systemic examination didnot reveal any abnormality. The operated perinealwould was looking normal and the colostomy washealthy. Overall the child looks stable and recoupingfollowing surgery.

3 The surgical wound will needregular aseptic dressings and further managementwill be done as per need. In view of providingholistic care, the team felt that the child may be3shifted to AIIMS under care of Pediatrics Surgery,Pediatrics & Obstetrics Department with supportfrom Psychiatry (for parenteral counseling). Teamtalked to family (Father & Mother) took consent fortransfer of child under care by AIIMS team whichthey agreed but were worried and concerned aboutchild s health. Father was counseled and givenassurance for providing best care. Being less thanone year age all medical expenses will be exemptedat AIIMS under Janani Shishu Suraksa Yojana ofGovernment of INDIA . it stated, the Member Secretary of the Delhi State LegalServices Authority filed a status report which mentions that thechild had been shifted to AIIMS for better treatment.

4 That apart,the Member Secretary stated thus: That, in the instant case as per report receivedfrom DLSA concerned it has stated that vide orderdated by the COURT of Ld. AdditionalSessions Judge, Rohini COURT an interimcompensation of ,000/ has been awarded inaccordance with Delhi Victim CompensationScheme, 2015. After completion of necessaryformalities bank account etc. the amount of thesaid interim compensation would be disbursedimmediately through RTGS. That, it is submitted that DLSA Secretary,North West has also visited at Kalawati SaranHospital and met the parents of the child in themorning of and apprised them of theirlegal rights qua Delhi Witness Protection Scheme,2015, Delhi Victim Compensation Scheme, 2015etc. It is also submitted Legal Services Advocate ofDLSA has been appointed for providing legal aid inthe matter.

5 , when the matter was listed, it wassubmitted by Ms. Pinky Anand, learned Additional SolicitorGeneral, that the victim child had been discharged from AIIMSbut she was required to undergo another surgery which had beenfixed for 17th April, 2018. far as the child in the instant case is concerned, we havebeen apprised that she has undergone a second surgery and sheis presently stable. Ms. Pinky Anand, learned Additional SolicitorGeneral, would submit that if any medical assistance is requiredand the same is brought to her notice, proper care shall beprovided to the child. regard to the second aspect, on , it wasurged by petitioner who appeared in person that as far as casesunder the POCSO Act are concerned, there should be speedydisposal of such cases and on a subsequent date, informationwas sought from the High Courts in respect of the monitoring ofspeedy disposal of such the matter was called up today, the petitioner filed achart stating the number of cases under the POCSO Act pending5in various States and sought intervention of this COURT forissuing directions so that sensitivity with regard to the saidlegislation is shown by the trial courts and further, there shouldbe a speedy trial as postulated in the POCSO have heard Mr.

6 Alakh Alok Srivastava, the petitioner,who has appeared in person and Ms. Pinky Anand, learnedAdditional Solicitor for the respondent Union of POCSO Act has been legislated keeping in view thefundamental concept under Article 15 of the Constitution thatempowers the State to make special provisions for children andalso Article 39(f) which provides that the State shall in particulardirect its policy towards securing that the children are givenopportunities and facilities to develop in a healthy manner and inconditions of freedom and dignity and that childhood and youthare protected against exploitation and against moral and materialabandonment. The Statement of Objects and Reasons of the Actindicate the focus for reduction of child abuse and protection ofchildren from the offences of sexual assault, sexual harassmentand pornography, etc.

7 The relevant part of the Statement ofObjects and Reasons of the POCSO Act is extracted below: 6 3. The date collected by the National CrimeRecords Bureau shows that there has beenincrease in cases of sexual offences againstchildren. This is corroborated by the Study onChild Abuse: INDIA 2007 conducted by the Ministryof Women and Child Development. Moreover, sexual offences against children are not adequatelyaddressed by the existing laws. A large number ofsuch offences are neither specifically provided fornor are they adequately penalized. The interestsof the child, both as a victim as well as a witness,need to be protected. It is felt that offences Againstchildren need to be defined explicitly and counteredthrough commensurate penaltiesas an effective It is, therefore, proposed to enact a self containedcomprehensive legislation inter alia to provide forprotection of children from the offences of sexualassault, sexual harassment and pornography withdue regard for safeguarding the interest and wellbeing of the child at every stage of the judicialprocess incorporating child friendly procedures forreporting, recording of evidence, investigation andtrial of offences and provision for establishment ofSpecial Courts for speedy trial of such offences .

8 This context, it is apposite to reproduce the long Preambleof the POCSO Act. It is as follows: An Act to protect children from offences of sexualassault, sexual harassment and pornography andprovide for establishment of Special Courts for trialof such offences and for matters connectedtherewith or incidental thereto. Whereas clause (3) of article 15 of theConstitution, inter alia, empowers the State to makespecial provisions for children; 7 And whereas, the Government of INDIA hasacceded on the 11th December, 1992 to theConvention on the Rights of the Child, adopted bythe General Assembly of the United Nations, whichhas prescribed a set of standards to be followed byall State parties in securing the best interests of thechild; And whereas it is necessary for the properdevelopment of the child that his or her right toprivacy and confidentiality be protected andrespected by every person by all means and throughall stages of a judicial process involving the child.

9 And whereas it is imperative that the lawoperates in a manner that the best interest and wellbeing of the child are regarded as being ofparamount importance at every stage, to ensure thehealthy physical, emotional, intellectual and socialdevelopment of the child; And whereas the State parties to theConvention on the Rights of the Child are requiredto undertake all appropriate national, bilateral andmultilateral measures to prevent (a) the inducement or coercion of a child toengage in any unlawful sexual activity; (b) the exploitative use of children inprostitution or other unlawful sexual practices; (c) the exploitative use of children inpornographic performances and materials;And whereas sexual exploitation and sexualabuse of children are heinous crimes and need to beeffectively addressed. Eera through Dr.

10 Manjula Krippendorf v. State (NCTof Delhi) and another1, one of us (Dipak Misra, J), dwellingupon the purpose of the Statement of Objects and Reasons andthe Preamble of the POCSO Act, observed: 20.. the very purpose of bringing a legislation ofthe present nature is to protect the children fromthe sexual assault, harassment and exploitation,and to secure the best interest of the child. On anavid and diligent discernment of the preamble, it ismanifest that it recognizes the necessity of the rightto privacy and confidentiality of a child to beprotected and respected by every person by allmeans and through all stages of a judicial processinvolving the child. Best interest and well being areregarded as being of paramount importance at everystage to ensure the healthy physical, emotional,intellectual and social development of the is also a stipulation that sexual exploitationand sexual abuse are heinous offences and need tobe effectively addressed.