Co-Founder, iProbono India
In an important judgment protecting the rights of abandoned children and children who have suffered abuse at the hands of their guardians, the Delhi High Court has held that it is vital that vulnerable children be provided independent legal representation - so that their interests are protected in the judicial process.
The judgment was delivered in the matter of Rosie*, a 12-year-old student of class 7. Rosie’s mother left their family when Rosie was very young and is no longer in contact with anyone in the family. Soon after her mother left, Rosie’s father - an alcoholic who works as a mason - started abusing Rosie sexually. After being repeatedly abused and beaten by her father for nearly a year, Rosie ran away from her home.
When Rosie reported the crime, the Child Welfare Committee (CWC) placed her in a shelter home for her care and protection. In order to help prosecute the offender, the shelter home appointed a lawyer for the child. However, the Trial Court Judge did not accept the standing of the legal counsel despite the CWC’s appointment of the shelter home as Rosie’s ‘Guardian’ as defined under the Juvenile Justice (Care and Protection) Act, 2015, stating that neither the shelter home, nor the Director of the shelter home was “a family member or natural guardian of the victim or her guardians appointed under the Guardians and Wards Act, 1890”.
In Rosie’s matter, the Trial Judge’s decision effectively meant that the shelter home could not even appoint a lawyer to represent the child in the criminal proceedings against the perpetrator of abuse. The consequence was that the child would not be able to have legal representation, despite the Constitutional and legal guarantees of legal aid.
The shelter home where Rosie was staying challenged this order. iProbono's network of lawyers working in collaboration with HAQ Center for Child Rights provided pro bono legal representation to the home and to Rosie.
According to data based on child sexual abuse matters taken up by iProbono’s Appellate Panel in the last two years, 40% of the offenders were immediate family members of the survivors. It is often the case that children who have been sexually abused by family members are coerced directly or indirectly to withdraw the case against the accused. Abandoned children are in a similar position because they have no guardian who can seek legal assistance on their behalf, and often lose their way in trying to access justice. Repeated encounters of children with the judicial system have shown the need for a vulnerable child to have independent legal representation.
Deciding the appeal against the Trial Courts order in Rosie's matter, the Delhi High Court set aside the Trial Court order and held that the shelter home’s Director will be guardian ad litem of the child to protect her interests in the course of the legal proceedings. The judgment further states that it is the Court’s “parens patriae jurisdiction for watching the best interest of the child” and made an observation against the manner in which the lower court disregarded Rosie's predicament.
According to National Crime Records Bureau data, more than 3,500 children aged 12 years or below were abandoned in India between 2007 and 2011. Out of these, the number of girls was disproportionately high compared to the number of boys. These children are exceptionally vulnerable to abuse, and many of them would have found it impossible to seek independent legal representation, if the Delhi High court had not clarified the law in such clear terms.
The Delhi High Court’s judgment underscores the basic right of access to legal aid and justice to vulnerable children who live on the fringes of urban public consciousness. The judgment is an important reminder to all lower courts - of the Court’s constitutional and statutory responsibility to consider the best interests of a child who is brought into contact with a complex and hostile legal system.
* Name changed to protect privacy