In January 2022, iProbono assisted in the filing of a Public Interest Litigation (PIL), Bibi Ayesha v Union of India before the Karnataka High Court along with its partner organisation, Enfold Proactive Health Trust. Within a month of filing this PIL, the Karnataka High Court bench of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindraj issued directions for the effective implementation of the Protection Of Children from Sexual Offences (POCSO) Act by mandating that the victim’s parents/caregiver/guardian as well as the legal counsel if appointed, be compulsorily notified before bail applications of an accused are heard. Minor victims of sexual abuse in Karnataka now have the right to be heard and represented at all bail hearings of an accused person in Karnataka courts.
The litigants are mothers of child survivors in Karnataka to whom Enfold has been providing psycho-social and medico-legal support. This litigation was brought on behalf of these aggrieved mothers, who were concerned that they were neither informed of the accused’s bail application nor given a chance to challenge them in court. As a result, issues such as the child’s safety and voice were left out of the Court’s consideration while deciding on matters of bail, contrary to provisions of the POCSO Act 2012 and POCSO Rules 2020.
Rohan Kothari, iProbono’s panel lawyer, who filed and argued the PIL, emphasised the importance of implementing the POCSO Act and Rules and keeping children’s rights in mind while doing so. During the hearing, Mr Kothari, relying on the Reena Jha judgment of the Delhi High Court, urged the Court to issue detailed guidelines to enforce Section 40 of the POCSO Act as well as Rules 4(11) and 4(12)(viii) of the POCSO Rules, which deal with the right to legal counsel and the police’s duty to notify the child and their caregivers of the accused’s arrest or bail. The Karnataka High Court in response, passed comprehensive guidelines, which included among other things, a directive to the investigating officer or the Special Juvenile Police Units (SJPU) to inform caregivers or legal counsel of the accused’s bail applications, as well as a directive to the Court to ascertain the status of notice served prior to hearing the bail application. The order further directed that the contents of this order be forwarded to all Special Courts and Sessions Court Judges across Karnataka, Karnataka Judicial Academy, Director General of Police, State Legal Services Authority and Director of Prosecution for necessary action.
The Delhi High Court’s ruling in Reena Jha v. Union of India, passed in January 2020, was the result of a joint intervention by iProbono and HAQ Centre for Child Rights. In 2019, the Delhi High Court issued practice directions to implement the mandate of Section 439 (1A) of the Code of Criminal Procedure (CrPC). These directions stated that the presence of the informant or any person authorised by him shall be required at the time of hearing a bail application in certain cases of rape, such as gang rape, rape of children, and rape that results in death or leaves the victim in a vegetative state.
In the Reena Jha case, it was argued that the Delhi High Court’s directions under Section 439 (1A) of the CrPC should apply to the equally heinous offenses under the POCSO Act, i.e., not just for cases of sexual violence involving adults, but also for cases involving chilldren. The Delhi High Court agreed and extended the practice directions under Section 438 (1)(a) to include offences under the POCSO Act as well.
The Delhi High Court’s progressive precedent in the Reena Jha case paved the way for other High Courts to issue similar guidelines in their respective jurisdictions. In 2021, the High Courts of Bombay and Allahabad issued directions in the same vein as Reena Jha in Arjun Kishanrao Malge v. State of Maharashtra and Ors and Rohit v. State of U.P, respectively. With Bibi Ayesha v Union of India, the Karnataka High Court has become the fourth state to recognise and protect a child’s right to be heard during bail proceedings.