Editor's note: The Applicant in this case are presently accused and all allegations against him remain to be proven and under Indian law he remains innocent until proven guilty, facts are taken from the relevant order of the High Court which referenced in the article. The author means no disrespect to the Honourable High Court and is exercising his right to merely critique the order Dated 16 January, 2017, a copy of which has been referenced in this article and reproduced below.
On 16 January, 2017, the Bombay High Court passed an order disposing off a bail application filed by a person who was accused of committing offences under Section 354 of the Penal Code of 1850 (Rape) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (Sexually Assaulting a Child). The high court granted bail to the applicant and a copy of the bail order can be found at the end of this article.
This author has not perused the papers of the case, nor has he heard the arguments in the matter, nor has he studied its record, so he will not comment if granting bail on these facts was the proper decision or not. However, he will limit himself to critiquing the language used in the order.
Judgements of the Superior Judiciary in India, cast considerable weight on the public mind and conscience, accordingly, they merit study for their potential social impact. Accordingly, this particular order, is worthy of our attention and scrutiny.
For the following reasons:
1. From this order, it is possible for a person to ascertain the identity of the child/victim.
The Protection of Children from Sexual Offences Act, 2012 (Pocso) as a guiding principle, calls upon the Special Court to protect the identity of the child, and gives identity an expansive meaning to include neighbourhood or family, school or any other means by which the child may be easily identified. In summing up the case of the Prosecution at Paragraph 2 (Where we find out where the child was currently staying) and Paragraph 3 (Where the child was adopted from and where the child's mother died) and the name of the adoptive father visible in the cause title. The identity of the child is now made plain and part of the public record.
With due respect to the court, due care needs to be taken while summing up cases involving sexual offences against minors and victims of sexual offences so that even clues to their identity are not revealed. This order has compromised the identity of the victim up to the point where at Paragraph 6 her present whereabouts are also revealed to the public at large. There is absolutely no point in making legislation that protects the identity of a victim of sexual assault or a child who has been a victim of an offence under the Pocso Act if there are publically available orders where there are such details. The court could have very well just mentioned the jurisdictional area of the police station. There was no need to mention the names of the home where the child had been adopted from or the place where the child was currently staying. Yet the order goes on to record it and thus lifts the veil of privacy that the child is entitled to both as a victim of sexual violence and as a person. A person, who was not represented before the court in her capacity as a victim of sexual violence
2. After this compromise of privacy, the order goes on to cast aspersions on her character.
At Paragraph 3 of the order, the Court states that the child/victim apparently had "unnatural behaviour" and that the supervisor of the protective home where she had been lodged prior to adoption had received several complaints about this. It also records that her mother passed away after being infected with HIV. At Paragraph 4, the court takes a statement made by the child when she was in the protective home, and concludes that the child had abnormal sexual instincts from childhood because of the conduct of her mother and the atmosphere where she lived. The court has taken this as an admission that she used to do "dirty things". Further in Paragraph 6, the court implies, that the only reason the child/victim is still in a protective home after attaining majority is because of her abnormal behaviour. Even though there is no record of this being argued either by the Prosecution or the Defence.
With utmost deference to the court, the court should not have recorded statements that would have cast aspersions on the character of the victim/child particularly given the society India lives in. Further, the child was not heard before these remarks were passed. Only the State was. Nor was an amicus curia (friend of the court appointed to act for the victim. If the court felt the statement of the child was relevant, the court should have heard her on it as the child is now a major. Or at least asked the major to explain the statement that she made in her minority, the statement on the basis of which the court concluded the minor used to do “dirty things”. The woman's character has been condemned without hearing her on it and forever that order will reflect that fact that she used to do “dirty things”.
Victims of sexual assault and violence are already hesitant to approach courts for redressed of their grievances, the chance that they will have their character history preserved as part of the permanent record is another such deterrent. Which mechanisms exist in the trial court (by holding sessions trials in camera) to preserve the anonymity of the victim, often at the appellate level, this anonymity is left to the wisdom and discretion of the high judiciary. Respectfully, superior courts must exercise discretion while making such observations and consider the broader impact they could have in deterring women and children from reporting incidents of sexual violence. Orders like this do little to encourage women to come out and report crimes that have been committed against them. In fact, they only discourage them. Few victims of sexual assault will feel reassured by orders like this, orders that compromise their privacy and cast aspersions on their character.
3. While disposing of an application for bail, the court should not have gone into the merits of the child/victim's testimony
As per Paragraph 2 of the order, the victim's abuse started when she was in Class VI and continued till 2015 when she approached the NGO who rescued her. At Paragraph 5 after the Court goes through the history of the victim, including her "unnatural behaviours", the court remarks that the complaint has been filed after a considerable lapse of time and therefore the statement on the basis on which the crime had been registered has been filed after a considerable lapse of time. Therefore, it did not inspire the confidence of the court. Further, the fact that had not disclosed the incident to the supervisor of the protective home was also a fact that was held against the victim and the statement was called into question on those grounds as well.
Respectfully, in a case concerning a child who has been sexually assaulted, these two facts should not be taken into consideration at all when speaking as to the truthfulness of the child's statement. Further, at the stage of bail, these facts need not be gone into at all. As the court goes on to state that the investigation is complete and the charge sheet has been filed, this itself is a ground on which bail could have been granted. It is vitally important, that courts encourage victims to come forward and report crimes and create an environment where victims feel that they will be believed. With due respect to the court, this order fails to do that and instead, almost creates hostile social consequences for a victim who has come forward to report her assault.
The court states towards the end that these observations are limited to the disposal of the bail application, however, the order is made public. Unfortunately, that may be limited to the trial of this case. But in real terms, this order will no doubt have irreparable implications on the life of the victim/child. Gender sensitisation of the judiciary and the law enforcement machinery should not be limited to just trail court judges, orders like these reflect the need for the senior judiciary to be trained in gender sensitisation.
Read the full order here:
Published Date: Feb 09, 2017 12:39 pm | Updated Date: Feb 09, 2017 10:45 pm