POCSO: Tale of two states; conflict, resolution, lot more

Tamil Nadu is encouraging its denizens to use the facilities in Government Hospitals for delivery and it has helped it keep its IMR at 13. The Committee citing statistics said more than 60 percent of POCSO cases that were registered relate to mutual romantic relationships. Can Assam, which has recently arrested scores of individuals accused in child marriages under POCSO, emulate Tamil Nadu to manage the issue in a more rational way? Writes ETV Bharat's R Prince Jebakumar.

Hyderabad: What’s wrong with the recent spate of ‘mechanical arrests’ of individuals accused in child marriages and POCSO cases in Assam? They are legal. Yes, they are. Yet, what we should know is that many of those arrests were made for crimes committed years ago.

There are two different issues here. The majority of these POCSO cases arise out of child marriages and the arrested patriarchs share a child or two with their wives who were once child brides. Assam Chief Minister Himanta Biswa Sarma has blamed these child marriages for the state’s worst performance on Infant Mortality Rate (IMR). Citing the NFHS-5 survey, Himanta also said that the state has become a net contributor to the national IMR. The National Family Health Survey 2019 placed Assam in the 25th spot with an IMR of 31.9 which was lesser than the national average of 35.2. Interestingly, Assam has improved its IMR from 47 in 2015 to the latest one.

The High Court question - Perhaps, the Guwahati High Court in Assam which registered its displeasure over the regressive arrests in POCSO, and the state can follow Tamil Nadu in handling POCSO cases sensitively as suggested by the Juvenile Justice Committee (JJC). Tamil Nadu is encouraging its denizens to use the facilities in Government Hospitals (GH) for delivery and it has helped it keep its IMR at 13. The Committee citing statistics said more than 60 percent of POCSO cases that were registered relate to mutual romantic relationships.

The sin - In Assam, a 16-year-old pregnant mother died after her family decided not to take her to a hospital fearing the arrest of her husband amid a crackdown. For the sin of falling in love with a girl below 18, the male is criminalised by arrest and prosecuted in view of the stringent provisions of the POCSO Act. Among several Adivasis and Tribals, it is not taboo for a male to marry a girl who is less than 18.

When an underage wife goes for delivery to a government hospital, the information is sent to the police, a case under the POCSO Act is registered against her husband, and he is arrested. Why should the arrest not be mechanical? The Supreme Court has held in no uncertain terms that the power to arrest needs to necessarily mean that the same should be exercised mechanically.

Therefore, as a policy, police can refrain from arresting the accused in such cases. Notice under section 41 CrPC can be issued in lieu of arrest. The Committee observed that most cases end up in acquittal either on account of the marriage between the survivor and the accused or on account of the survivor turning hostile. Criminalising youths will have a deleterious effect on their career, life, and future, as they would have to live with a stigma forever.

POCSO amendment mooted - Noting it to be a pan-India phenomenon, the Committee suggested the POCSO Act be amended empowering the Special Judges dealing with the cases for compounding the offense in deserving cases.

Guidelines - The Committee ordered the Registrar General of the Madras High Court to advise DGP C Sylendra Babu to issue a circular to the Investigating Officers of POCSO cases with the following guidelines:

• not to show haste in effecting the arrest of the accused in mutual romantic cases;
• instead, issue a notice under section 41 CrPC to the person concerned for inquiry;
• record the case diary, the decision for not arresting the accused, along with the reasons thereof; and resort to arrest only with the permission of the Superintendent of Police/Deputy Commissioner of Police, as the case may be.

Case diary, negative charge sheeting - The Committee advised the supervisory officers to monitor the progress of each of the POCSO cases, put a check on delay, and countersign in the case diary whenever certain important or challenging decisions are taken, especially while filing a negative charge sheet.

In general, all Investigating Officers were filing positive chargesheets even if it is not true. They used to do that since they feared non-filing of a positive charge sheet would place them in trouble. Such false positive charge sheets will waste the court's time and expose an innocent person to face the trial and its connected risks.

How have guidelines evolved? The Committee got to know the full-fledged implementation of the victim support systems in POCSO cases practiced in nine districts under the South Zone. During the consultations, South Zone IGP Asra Garg shared the best practices which were then evolved and the Committee wrote to the DGP who issued a Circular.

What can Assam do?

If the state has to make further strides in improving the IMF, it can build confidence in the already tested and tried method available from Tamil Nadu. Encourage the mothers even underage to the hospital assuring that retrospective arrests will not be made. Also, it can follow the POCSO guidelines of the JJC to bridge the trust deficit accrued on account of arrests.