Saturday, 29 April 2017

Law for Protection of Children from Sexual Offences

Introduction

The sexual offences were covered under Indian Penal Code (IPC). But the IPC did neither provide for all types of sexual offences against children, nor did it distinguish between adult and child victims. So a special law was enacted by Lok Sabha on 22nd May, 2012 called ‘The Protection of Children from Sexual Offences Act, 2012’ – in short POCSO Act.

The objective of the law is to prevent abuse of children and to bring in a healthy environment endowed with freedom and dignity for their development. Precisely, the law seeks to strengthen the protection of children from sexual offences of sexual assault, sexual harassment and pornography, against children and to establish special courts for trial of such offences. A child, as the act defines, is as a “person below the age of 18 years”. This is a self-contained comprehensive legislation.

Defines Key Concepts

The law defines sexual harassment, sexual assault, aggravated sexual assault, penetrative sexual assault etc. at length. Sexual harassment means making a gesture, exhibiting a part of his/her body, showing a pornographic material or watching his/her body through an electronic media etc. Sexual assault is the touch of a child’s body with sexual intent. Aggravated sexual assault means a sexual assault by an authority, such as a member of security forces, police officer, public servant, etc. in a position of trust or authority of child, who keeps a child under legal custody. Reporting a denigrating report on the child by the media is an offence. Abetting a child abuse is also punishable.

Punishments Covered

The law provides for stringent punishments ranging from simple imprisonment to rigorous imprisonment of varying periods, possibly with a fine to be fixed by the Court.
The punishments under the act are:


  • Sexual Harassment: Three years and fine
  • Sexual Assault: Not less than three years, but may extend up to five years, and fine
  • Aggravated Sexual Assault: Not less than five years but may extend to seven years, and fine
  • Penetrative Sexual Assault: Not less than seven years but may extend to imprisonment for life, and fine
  • Aggravated Penetrative Sexual Assault: Not less than ten years but may extend to imprisonment for life, and fine
  • Use of Child for Pornographic Purposes: Five years and fine and in the event of subsequent conviction, seven years and fine
Special Courts & Child Friendly Procedures

·       The Act provides for the establishment of Special Courts of Sessions or for conversion of any other child court as special court at the district. The law prescribes child friendly procedures for reporting, recording of evidence, investigation and trial, of offences.

·       The recording of the child’s statement should be at the residence of the child or at a place  of its choice, preferably by a woman police officer not below the rank of Sub-Inspector.
·          No child is to be detained in the police station during the night for any reason.
·          The Police officer should not be in uniform while recording the child’s statement.
·          The child’s statement is to be recorded as spoken by the child. Assistance of an interpreter   or translator or an expert as needed is to be obtained.
·           Assistance of special educator or any person familiar with the manner of communication of   the child is to be obtained in case the child is disabled.
·        Medical examination of the child is to be done in the presence of either the parent of the  child or any other person in whom the child has trust or confidence.
·        In case the victim is a girl child, the medical examination shall be conducted by a woman  doctor.
·           No child is to be called repeatedly to testify anything.
·           No aggressive questioning or character assassination of the child is to be opted.
·           In-camera trial of cases is to be done.

Unsuccessful Attempt and abetment

Any attempt to commit an offence under the Act, even when unsuccessful, has been made liable for punishment for up to half the punishment prescribed for the commission of the offence. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.

For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. 

To prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. The punishment for misuse has been kept relatively light as six months to encourage reporting. On false complaint against a child, the punishment is for one year.

Media not to Disclose Victim’s Identity

The media is barred from disclosing the identity of the child without the permission of the Special Court. A breach of this provision will result in a punishment of six months to one year.

Evidence of the child is to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within one year. As soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, immediate arrangements are to be made simultaneously to admit the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.

Central Rules Notified

The central government formulated and enforced the rules on 14th November 2012. The rules provide for qualifications and experience of interpreters, translators, special educators and experts. They, as well, lay down arrangements for the care, protection and emergency medical treatment of the child, compensation payable to the victim.

The rules rely on the structures, such as Child Welfare Committees and District Child Protection Units established under the Juvenile Justice Act, 2000, to make arrangements for the care and protection of the child. When a child is taken to emergency medical care facility, no magisterial requisition or other documentation is to be demanded by them prior to giving medical care.

The rules lay down criteria for award of compensation which may be awarded at the interim stage as well as upon completion of trial by the Special Court.

Sources of Reference



Wednesday, 19 April 2017

Liquor ban on Highways: A Judicial Extra vaganza

K Rajasekharan
Advocate, Thrissur Bar

The Supreme Court’s (SC’s) ban of liquor sale within 500 meters of national and state highways is a classic case of unwarranted judicial law making and flagrant violation of the well established doctrine of separation of powers among the organs of governance. It is a ludicrous judicial encroachment on the pristine powers of the legislature.
The ban brings to the fore some procedural flaws of the judiciary as well. The ban was brought in by invoking Article 142 of the Constitution which vests unfettered jurisdiction on SC to pass any order in public interest to do “complete justice”. The article is a residuary provision which should be invoked only in rare cases to address apparent injustice or illegality. The use of the article by the court liberally in every issue, when there exists no unanimity among legal experts about its use, is a unwelcome one. Nowadays the court, when confronts a void in law, prefers to embark on unacceptable judicial law making, probably for the sake of populism or with an eye on getting itself onto media headlines.
No doubt, the increase in vehicle accidents and deaths due to illegal liquor use by injudicious drivers is a matter of serious concern for all. But that is to be sternly dealt with both by the legislative and executive branches of government rather than by the court. This is because the court is not endowed with the capacity to deal with such issues of complex and multi focal nature and therefore such extraneous judicial efforts will end up in the weakening of already infirm judiciary itself in the long run. If the court has a preposterous preference to engage in every aspect of law making whenever it confronts a legal void, then one would reasonably doubt the valid reason for us to retain expensive legislative forums. 
Every instance of policy formulation or law making requires long drawn out consultative and iterative deliberations of complex nature for which the courts are wholly ill-equipped. Its procedural patterns, meant for almost unidirectional adjudication between opposing contentions, are ill-suited for the purpose. That is why our constitution makers have kept legislative and adjudicative processes in governance as separate but complementary ones.
Let us not forget that even though provisions are there in the Constitution, the exercise or promulgation of ordinance which devours the legislative deliberations and when used in occasions other than extreme or precarious ones, is declared an unconstitutional act, probably using the same logic. The legislature is the right forum to legislate even though incidental legislative powers are given to other organs to address unforeseen eventualities. However, neither the executive nor the court has the right to usurp the inherent powers of the legislature.
  
By callously encroaching upon the domain of government or legislature, the judiciary quite often shows its undue and unacceptable gallantry. It is well settled that the court is not expected to add words which are not there in the statutes or read words into the legal provisions, during adjudication. The court should not tend to play the role of a law maker. It must not forget that there exists a thin line between the three organs of governance even though the demarcation is not as rigid as in the US. But the line should not be crossed or erased except in extreme cases where the fundamental rights of the citizen are infringed by the State action amounting to grave injustice. The court, when deciding a case, cannot go on according to the individual will of the presiding judge but only in tune with the provisions of law enacted by the legislature. The SC in this case says it has neither formulated any legislative policy nor enacted any law but what it did was nothing else. It has indirectly done what it cannot directly do, which is absurd by all means.
Imposing prohibition or restricting liquor use is a prerogative of the state under Entry 8 of the State List coming under the Schedule VII of the Constitution. But by this ban the SC curtailed the license of the liquor outlets valid for a further period from March 31 as against everyone’s expectation and by ignoring every cannon of jurisprudence and governance. No report has ever proved that it would be possible to reduce accident deaths on account of drunken driving by shifting liquor shops from the roadsides to a distant place. But the court, with no testimony whatsoever, got convinced of a delusive connection between both. 

The court has great many responsibilities - such as ending judicial delays and backlog of cases – to do to ensure speedy justice to all. If it engages in well planned judicial reforms remaining within the bounds of separation of powers it can improve judicial functioning far better. If so the judiciary will become more independent, powerful and prestigious. Doing the right things assertively and distancing from the unwarranted things should be the motto that our judiciary should stick on to in order to engage in better dispensation of justice. The ban order - that creates more problems than it solves - may not make the judiciary more sacrosanct.

Tuesday, 21 March 2017

Law on Maintenance of Parents & Senior Citizens

The parents and senior citizens, who are neglected by their children, can now claim need-based maintenance from their children on the strength of the law - Maintenance & Welfare of Parents & Senior Citizens Act, 2007

It is legally binding on children or relatives to look after the elderly. The law has come into force in the State of Kerala on 29.08.2009 when the state brought the Kerala Maintenance and Welfare of Parents and Senior Citizens Rules 2009 into force.

The law provides for creation of Maintenance Tribunal for each revenue division to deal with application for such maintenance. The Tribunal is presided over by  the Revenue Divisional Officer (RDO). The act provides for appeals also. The Appellate Tribunal of each district is presided over by the District Collector. District Welfare Officers are designated as Maintenance Officers for each district. The Tribunal, before hearing an application, may refer it to a Conciliation Officer for amicable settlement of dispute. The panel of Conciliation Officers as per the law is yet to be formed.

A senior citizen or parent unable to maintain himself/herself can file an application for maintenance to the Maintenance Tribunal. If a person cannot file the maintenance application, then any other person or organisation authorised by the person can file the application on his/her behalf. The kith and kin of the parent/senior citizen, who are in possession of the property of such parent/senior citizen or who would inherit the property of such parent/senior citizen also, have an obligation to provide such maintenance. The application for maintenance in the case of parent or grand-parent is to be filed against one or more of his children, but in the case of a child-less senior citizen the petition is to be filed against the relative who would inherit his property.

The application is to be filed in form No A, as specified in the Rules. The Tribunal can suo-moto initiate proceedings for maintenance whenever necessary. The application for maintenance filed before the Tribunal, will be referred to the Conciliation Officer. The Officer in turn will hold conciliation between the two parties. Within one month of receipt of the reference the Conciliation officer will return the papers received by him with a report – carrying either a settlement formula if arrived at or a detailed account of steps taken by him for a settlement.

If the Conciliation Officers submits a settlement plan the Tribunal will pass a final order for settlement of the application. If no settlement is reported the Tribunal may pass an order for maintenance taking into consideration the amount needed by the applicant to meet his basic needs (such as food, clothing, accommodation and health care), income of the opposite party, and value of actual and potential income from the property, if any, of the applicant which the opposite party would inherit and/or is in possession of.
The application for maintenance has to be disposed of within 90 days. The maximum amount that the Tribunal can order at present is fixed as Rs 10,000/- . The aggrieved persons can prefer an appeal against the order before the Appellate Tribunal. The law prohibits the lawyers from appearing before the Tribunal.

If a person who received a property from a senior citizens fails to provide the basic amenities and physical needs to the transferor there is a provision of imprisoning the person for three months or with fine up to Rs 5000 or with both.

The law provides for not only maintenance but also welfare measures to parents and senior citizens. The law is a comprehensive one. The law holds the State responsible for the implementation of welfare measures for senior citizens. The High Court of Kerala last year ordered (W P (C) 4981/2015) the children to provide ‘welfare measures’ such as food, healthcare, recreation and other amenities even to the live-in partner of their mother.

Some ambiguities are there in the Senior citizens law. Senior citizen is defined as “any person above 60 years and includes parent, whether or not senior citizen”. That means a parent with less than 60 years of age but with a child of more than 18 years of age, is defined as a senior citizen. “Relative” means any legal heir, who is not a minor, of the childless senior citizen and is in possession of or would inherit his property after death. No doubt, the act is a significant step in dispensing of the insecurity of the elderly and paving way for their well being.

Maintenance under Criminal Procedure Code

The Code of Criminal Procedure, 1973 has a limited provision under its section 125 for maintenance of parents but is silent on welfare measures.  The application for maintenance is to be filed before the First Class Judicial Magistrate who can deliver an order for maintenance. The person failing in complying with the order of the court may get punishment of fine or jail term.

Can anyone opt for both reliefs?

Parents can claim maintenance either under Section 125 of the Criminal Procedure Code 1973 or under the law mentioned above – they cannot opt for both.  If an application under Section 125 is pending before the court, he/she has to withdraw the application before filing a petition before Maintenance Tribunal.