The Allahabad high court recently urged the Law Commission to recommend suitable amendments to the Protection of Children from Sexual Offences (Pocso) Act, 2012, dealing with minor couples after considering the social realities prevailing in India.
The court said that in certain circumstances, strictly applying the Act could produce consequences that may “advance injustice rather than justice”, particularly where a relationship has resulted in the birth of a child.
“The possibility of alternative forms of punishment, including community service, may also be examined, so that a family formed in circumstances arising from ignorance of the provisions of the POCSO Act is not unnecessarily disrupted in the very name of protecting girls and women below the age of 18 years,” the court said.
With these observations, a bench comprising Justice Atul Sreedharan and Justice Achal Sachdev in its October 5 order also allowed the habeas corpus petition of one Rakesh Yadav and another and permitted the woman to live with her husband with whom she had eloped and got married.
The court allowed the petition because according to the ossification test report, the woman was around 18-years-old and the couple had a 2-month-old baby.
{{/usCountry}}The court allowed the petition because according to the ossification test report, the woman was around 18-years-old and the couple had a 2-month-old baby.
{{/usCountry}}“While enacting the legislation, it does not appear that sufficient regard was given to the social realities prevailing in India, where a considerable section of the population remains illiterate or semi- literate and may not even be aware of the rights guaranteed to them under law and the Constitution, much less of the duties, obligations and legal consequences arising therefrom,” the bench said.
The court made such an observation after an interaction with the woman and her father when the woman said that she studied up to Class 5 but could not read newspapers and could only write her name.
“Undoubtedly, ignorance of law is no excuse. However, if this principle is applied in a purely pedantic manner, the implementation of the POCSO Act may, in certain factual situations, result in consequences which may appear to advance injustice rather than justice,” the bench observed.
The court suggested that possible suggestions on amendments could include vesting special judges with adequate discretion in exceptional cases, such as the present one, to consider the circumstances of the case while determining the appropriate punishment.
The court said the present case disclosed a conflict between human development and the rigors of law. The court emphasised that the state must ensure minors remain meaningfully engaged in education until they attain majority and receive adequate opportunities to acquire vocational skills and become self-reliant.
The bench made this observation about the minors’ education after expressing concern over the girl’s inability to read the Hindi newspaper in the courtroom. The court observed that the quality of the state education system was, “to put it mildly, a matter of serious concern”. It questioned why the girl had discontinued her education after Class V and why the state had been unable to ensure that she continued studying.
The high court said the legislature had remained silent on the issue despite the possibility of injustice arising from the strict application of the Pocso Act.