At the event celebrating 10 years of iProbono India on Friday, 17 March, we held a discussion on an issue seminal to our work – the role of victims’ counsel under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
In a session titled ‘Victims Counsel in POCSO trials – A Review Across States,’ we brought together iProbono’s panel lawyers – Anubha Rastogi (Mumbai), Faraz Maqbool (Delhi), Rohan Kothari (Bangalore), and Shailesh Poddar (Ranchi) – to create a dialogue between legal practitioners from different states and encourage cross-jurisdictional learnings on the topic.
Moderator and iProbono Program Officer Nimisha Menon asked the panellists about the crucial steps a victim’s counsel takes at different trial stages – bail, compensation, prosecution evidence, etc – and discussed child-friendly court procedures followed in different states.
The session also discussed the need to broaden the scope of the role of a victims’ counsel in the trial.
The Role and Importance of a Victims’ Counsel
The panellists highlighted that the role of a victims’ counsel is crucial in a POCSO trial as having legal representation helps hold the justice system accountable vis-a-vis the child victim. The various stages, they added, where a victims’ counsel plays an important part are filing for compensation for the child victim, opposing bail applications filed by the accused person(s), assisting at the stage of recording of a victim’s testimony, and during final arguments.
While states like Delhi and Jharkhand recognise the importance of this role, in jurisdictions like Maharashtra and Karnataka victims’ counsel often face issues with courts questioning their locus to participate in the trial.
Recognising the need and the urgency of having legal representation for a child victim at the stage of bail, Rohan Kothari on behalf of iProbono and Enfold Proactive Health Trust, filed a public interest litigation (PIL), Bibi Ayesha Khanum v. Union of India, in the Karnataka High Court to strengthen the rights of child survivors during bail proceedings. Within a month of filing this PIL, the high court issued directions, making it compulsory for survivors and/or their caregivers or their legal counsels (if appointed) to be notified before bail applications of an accused are heard.
Talking about the importance of this judgment during the session, Kothari said: “Since then, it has been very rewarding because now you go to court and every time you are applying for bail, they cite this judgement that Enfold and iProbono were instrumental in getting for those families”.
Child-Friendly Court Procedures in Different States
The panellists concurred that basic child-friendly court procedures – in-camera trials, having vulnerable witness waiting rooms (with an exception to Jharkhand), questions being directly put to the child victim by the judge, etc – were being followed in each of their specific jurisdictions.
The panel provided administrative recommendations such as:
- having different courts hours for children coming to court to testify to ensure that they are not intimidated by the number of people in the room,
- having a uniform procedure in granting travel reimbursement/diet money to witnesses coming to court to testify,
- having accessible lavatories in the court complex (especially in Jharkhand),
- need for sensitivity training sessions for various stakeholders on how to deal with families/child victims who have faced sexual abuse.
Should We Advocate for Broadening the Role of Victims’ Counsel?
Having established the importance of a victims’ counsel in a POCSO case, the panel then discussed whether an increased involvement would help the child victims.
The Supreme Court in Rekha Murarka v. The State Of West Bengal had restricted the intervention of a victims’ counsel to only “assisting” the public prosecutor and refused them the right to cross-examine a witness and make oral arguments at large. The panellists discussed whether it would be fruitful to file strategic litigation regarding this.
Their consensus was that we are still only scratching the surface of the issues faced by counsels representing child victims in child sexual abuse cases and that there is a need for guidelines for this role issued by the higher judiciary.
They also pointed out the importance of working with victims’ counsels in different states to collect data about their experiences of working on POCSO trials.
Another suggestion was to strengthen the office of public prosecutors since this issue stems from an institutional problem of not having trained and sensitised public prosecutors.
“Training and sensitization of judges is a possible way forward to make POCSO courts more child friendly. The intent cannot be to confuse a child while deposing” – Faraz Maqbool, Panel Advocate, Delhi
The Way Forward
The panellists suggested the following ways of strengthening the criminal justice system:
- The same standard of recognising the role of victims’ counsels should be applied nationwide and steps must be taken in order to achieve this.
- Data should be gathered from different states to analyse whether child victims in POCSO cases are legally represented in court.
- The rights of the child victims should be reiterated throughout the trial process by filing applications or informing the court of the situation of the child victim and their vulnerability.
- Sensitisation training should be conducted for public prosecutors to strengthen their office.
- Each high court should formulate guidelines to streamline the roles and responsibilities of the victims’ counsels.
- There should be different court hours for children to reduce the chances of intimidation.
- There should be a uniform procedure for granting travel reimbursement/diet money to witnesses
- The court infrastructure should be made more child-friendly.
We continue to engage with lawyers across jurisdictions to achieve our goal of making the child protection ecosystem more conducive to the well-being of those it’s protecting.