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AUG 2016
INDIA

Compensation for Akash: A landmark judgement that brings hope for male survivors of sexual assault

"It was heartbreaking when my child was wronged. With no financial aid or support, it was extremely difficult for me to take my fight further. But, with the legal support that I received through iProbono, I gained the strength and the confidence to overcome the wrongs that were done to my child and continued on my path to seek justice!"

Simran*

Akash's Mother

The Delhi High Court has delivered a landmark judgment holding that there is no monetary limit to the compensation that can be granted to minor survivors of sexual assault. The High Court passed the order in a writ petition filed by a minor male, Akash*, through his mother. Akash was sexually assaulted at the age of 12, by four of his classmates in school and suffered grievous physical and psychological injuries.

During the course of the case, State Government was compelled to revise the Delhi Victim Compensation Scheme, making Akash one of the first male survivors of sexual assault to receive compensation reserved under the ‘grievous sexual assault’ category.

In 2011, Akash was abducted from his school in New Delhi by four boys who studied in the same school and taken to a nearby forest to be subject to sexual penetrative assault and brutality. The perpetrators were found guilty and sentenced to detention in a juvenile detention centre while Akash was awarded compensation of Rs.50,000 under the Delhi Victim Compensation Scheme. The Scheme differentiated between male and female survivors of sexual assault, with compensation for males falling under "child abuse" (maximum award of Rs.50,000) rather than “rape” - which the law recognizes as a crime committed only against females - with a maximum compensation of Rs.3,00,000. Pertinently, the Victim Compensation Scheme failed to include the gender-neutral categories of offences under the POCSO (Protection of Children from Sexual Offences) Act. As a result, POSCO Courts were wrongly relying on the categories of “rape” and “child abuse” to provide compensation to minors.

HAQ Centre for Child Rights brought Akash’s case to iProbono in 2015. Lawyers from iProbono’s panel of advocates for children, Diya Kapur, Shyel Trehan, Tejaswi Shetty and team filed a writ petition in the Delhi High Court - seeking enhancement in the compensation amount given to Akash and also sought a direction from the Court to the effect that for victims of POCSO offences, there is no maximum amount of compensation that could be granted. 

The lawyers argued that compensation ought to be determined on the facts of each case. In Akash’s case, the family suffered serious setbacks as a result of the assault, and Akash’s mother who is a beautician had to leave her job to provide support to Akash through his psychological trauma. Akash’s father is a driver and the family was struggling to make ends meet. These facts were not appreciated by the POCSO Court.

"It's a huge step that the court has declared that the special court is not bound by limits prescribed under the Victim Compensation Scheme. In case of child survivors, the need for compensation is much greater since the lives of children are impacted forever in ways that are emotional and immeasurable. It's also a huge step in recognising that male survivors of child abuse are equally affected as female victims. The judgment reflects the forward thinking and sensitivity of our judges” said Diya Kapur, delighted with the verdict. 

Diya and the rest of the team of lawyers on the case had also argued that POCSO courts ought not to refer to the categories of offences contained in the Victim Compensation Scheme, which are not gender-neutral and highlighted the gender-discriminatory effects of the Delhi Victim Compensation Scheme.

Bharti Ali, Co-Director at HAQ Centre for Child Rights was more pragmatic: “We appreciate the order since it establishes the right of a male child survivor of sexual abuse to victim compensation and also clarifies once and forever that the Courts dealing with POCSO cases have to decide on the amount of victim compensation; they are not bound by the state victim compensation scheme, implying that they can give a higher amount of compensation based on the facts and circumstances of each case. However, we would like to request all such Courts to expedite interim compensation and not wait until the victims testify in the court. This will not only meet the immediate needs of the victims, but will also reinforce their faith in the system and the support guaranteed by the system.”

The judgment in Akash’s case paves the way for more gender-inclusive verdicts on the issue of compensation that are in keeping with the letter and the spirit of POCSO Act. The High Court decision provides valuable guidance to POCSO Courts on the important issue of compensation and rehabilitation of minors.

"Our aim is to involve all capable legal professionals in the project of ensuring equal access to justice. We are very happy that our Panel of lawyers have been so successful in securing justice for survivors of child abuse", said Swathi Sukumar, co-Founder of iProbono India.

* Names changed to protect privacy