New Delhi, 19 May 2020
Summary: A case brought by iProbono and HAQ Centre for Child Rights, Reena Jha & Anr. Vs Union of India & Ors, means that families must be notified and represented at all bail hearings involving child sexual abuse, making sure their voices are heard. This adds another layer of safeguarding for victims, their families, and the community. On 13 May, the Delhi High Court decision in Miss G (minor) through her mother Vs State of NCT of Delhi & Anr reiterated progressive directions passed in January 2020 in Reena Jha, and directed the Registrar General to circulate the decision to all District and Sessions Courts in Delhi in order to ensure compliance by criminal courts. Advocate Tara Narula argued the Miss G matter on behalf of HAQ.
In light of the recent decision in Miss G, we highlight the significance of directions set out by the Court in Reena Jha; a Public Interest Litigation (PIL) filed in May 2017 by aggrieved mothers of minor survivors of sexual abuse, through iProbono and HAQ. iProbono panel lawyer Gautam Khazanchi and senior lawyer Siddharth Aggarwal sought specific guidelines against violations of key provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012. Reena Jha’s case set a progressive precedent for all criminal courts in Delhi hearing bail applications in POCSO cases and ensures enhanced protection for children i.e. all those below 18 years, regardless of gender.
The accused in Miss G’s case was charged with rape of a minor under s.376 of the Indian Penal Code and s.4 POCSO. He was granted interim bail in the Sessions Court without any notice to the complainant. The child’s mother launched a challenge on the basis that the decision to grant bail was bad in law and violated established Practice Directions which ensure that bail orders in POCSO cases are issued with a notice to the complainant or an authorised person. In addition, the trial court had ignored the threat to the child and her family posed by the accused who would be out on bail in their locality. The High Court ensured that the child was protected in this instance and reiterated that courts must notify the complainant of any bail application. Practice Directions must be recirculated across all criminal courts in Delhi dealing with sexual offences under relevant sub-sections of s.376 of the Indian Penal Code and those courts hearing cases under the POCSO Act 2012.
In Reena Jha (January 2020) the High Court had emphasised POCSO Rules stating that the police must inform a complainant’s family of any arrest, bail hearings or grant of bail. If the accused is a close family member the Child Welfare Committee must be informed. This matter raised other key access to justice issues including a child’s right to legal counsel for bail hearings and the duty of the Police to inform the child and his parent/guardian of arrest or bail of the accused. These measures acknowledge that non-implementation of the provisions can impact the trial and leave a child survivor vulnerable to acts of intimidation by the accused.
iProbono welcomes the decision in Miss G (minor) through her mother Vs State of NCT of Delhi & Anr and remains committed to its mission of protecting child survivors of sexual abuse through extensive engagement with legal and judicial systems.