The United Nations Convention on the Rights of the Child [‘Convention’], ratified by India on December 11, 1992, requires all the Member States to provide a conducive ecosystem where the children can be brought up in the spirit of dignity, tolerance, freedom, equality and solidarity. The Convention also urges the States to take appropriate and necessary legislative, administrative, social and educational measures to stymie all forms of violence, injury or abuse, including exploitation and sexual abuse to preserve the innocence of children.
With the aim of affirming the fundamental principles laid down in the Convention, the Indian Government brought in the ‘widely supported’ Protection of Children from Sexual Offences Act, 2012 [‘POCSO Act’]. The Act emanates from Article 15 of the Constitution of India which empowers the State to make any special provision for women and children. The principal objective of the Act is to shield children from all forms of horrible social evils, and to establish Special Courts for speedy trial of offences against children. Enunciating the same, the Supreme Court of India in Ms. Era v. State (Govt. of NCT of Delhi) & Anr. observed that ‘…the POCSO operates in a manner that the best interest and well-being of the child are regarded as being of paramount importance at every stage.’
Furthering the said objective, in May 2020, the High Court of Andhra Pradesh [‘Court’] in Mondi Murali Krishna v. Dumpa Hanisha Naga Lakshmi & Ors. [‘Mondi Murali Case’] made it perspicuous that the dignity and integrity of a child must be protected at all stages of the judicial process. The Court, while interpreting the true purpose of the Act, progressively opined that the relevant provisions of the Act would be applicable even after the victim has attained the age of majority, but was a minor on the date of commission of crime.
In the article, the authors attempt to undertake a granular assessment of the judgment by perusing the conceptual and statutory underpinnings of ‘removing the limitation period in POCSO related cases’.
Examining the Contours of the Case
In the Mondi Murali Case, the victim committed suicide as she was subjected to sexual assault and sexual harassment. Consequently, the father of the victim lodged a report with the police against the accused including the principal of the college for not taking action against the accused. In this case, the Court grappled with the legal issue: whether the POCSO Act would apply since the complaint was lodged after the victim had turned major before her unfortunate death. The Court, whilst adjudicating, espoused a purposive interpretation by delving into the legislative intent of the enactment and answered in the affirmative. The Court categorically held that the child sexual abuse victims have the legal right to knock the doors of the courts in the adulthood, albeit the crime was committed when the victim was below the age of ‘eighteen years’.
Notably, the Court has imbibed the sentiments of the explanation issued by the Ministry of Women and Child Development of India [‘Ministry’] in 2018. The Ministry, with the intent to embolden victims to report the abuse, clearly established that a victim of child sexual abuse can file a complaint at any time irrespective of his/her present age as no such period in regard to reporting of offenses is prescribed in Section 19 of the Act.
The Ministry, in the study conducted in 2007, remarkably noted: ‘[t]he shame, secrecy and denial associated with familial sexual violence against children foster a pervasive culture of silence, where children cannot speak about sexual violence in the home, and where adults do not know what to do or say if they suspect someone they know is sexually abusing a child.’ Seemingly outrageous, the phenomenon is equally prevalent in other jurisdictions. Australia’s royal commission into institutional responses to child sexual abuse had found that it takes an average of 24 years for people to describe their painful past. Resultantly, a vast majority of child sexual abuse remains unreported and falls outside the scope of legal scrutiny.
Possibly, the legal quagmire existed because both Section 468 of the Code of Criminal Procedure, 1973 [‘CrPC’] And Section 19 of the POCSO Act are silent with regard to condoning the delay in filing complaint against the accused in the POCSO matters. While Section 19 of the POCSO Act falls absolutely mute, Section 468 of the CrPC adopts a ‘minimalist approach’ as it prescribes a maximum period of limitation of three years for an offence not exceeding three years. That being the case, the punishments (jail term of 3+ years, life imprisonment and death penalty) prescribed for heinous crimes should have been kept outside the purview of section 468. However, the Ministry has now conclusively settled that a tardy disclosure of barbarous account by a child can be accommodated at any judicial stage.
Study of the Legal Facets Involved
The Court, while appreciating the evidence adduced in the Mondi Murali Case, scrupulously applied Section 30 of the POCSO Act. The concerned section deals with presumption of culpable mental state on the part of the accused’ and states that ‘the Special Court shall presume the existence of such mental state’until the accused proves it otherwise.
Putting Section 30 into practice, the Court opined that two pieces of clinching evidence presented before the court – (i) diary maintained by the victim in which she expressed her agony caused to her by the accused and (ii) the call records which show that accused used to make unwanted calls to the victim, made it pellucid that the accused had necessary knowledge or reason to believe that the act committed by them would outrage her modesty and hence must not be allowed to walk free. By accepting the pieces of evidence, the Court manifested that the evidence cited has the potential to stand the test of time, and the relevance of the said evidence remains intact post victim’s infelicitous incident.
One of the interesting features of the Indian criminal law is Section 473 of the CrPC (surprisingly not invoked by the Court in the Mondi Murali Case). Purposely, Section 473 grants discretion to the courts to take cognizance even after expiry of limitation period for effective administration and in the ‘interest of justice’. Elucidating the same, the Supreme Court in Vanka Radhamanohari (Smt) v. Vanka Venkata Reddy and Ors, progressively observed that the courts can disregard the delay not only when the facts and circumstances of the case demand but also when it is‘necessary to do so in the interests of justice’.
Application of the said Section allows the courts to tweak the limitation period norms in criminal offences in the ‘interest of justice’ which will certainly be a colossal respite for the victims. Specifically, the Delhi High Court in the case of Ankush Kumar v. State, astutely pointed out that ‘the impact of child sexual abuse is profound because of the sheer frequency with which it occurs and because of the trauma brought to the lives of the children who have experienced this crime.’ Hence, there is no gainsaying that Section 473 of the CrPC can play a pivotal role in accommodating the interest of the victims of child sexual offences in the judicial process by taking into consideration the tormenting experience a victim goes through. Therefore, the protection of the child’s best interests is a guiding principle for the courts to consider in all the POCSO matters, probably without any exception.
It is imperative to note that the High Court of Andhra Pradesh is not the first Indian court to produce a reasonable result in the interest of justice. Crucially, the traces of the ‘well-established principle of condoling the delay’ can be found in the matter of State v. Samji Isarya Gavit, where the prosecutrix filed the First Information Report (FIR) against her father (accused) on attaining majority for the crime committed on multiple occasions when she was in the 7th standard. The Special Court employed liberal interpretation and displayed sensitivity, and disregarded the delay in lodging the complaint. The court very well recognised the offence committed against the victim with malicious and evil intent, and therefore believed that the culprit who took advantage of the vulnerability of a child cannot be allowed to breathe the air of liberty.
In the authors’ opinion, all the legal systems should adopt a flexible approach for extension of time claims in such contexts and cautiously scrutinise as to when the victims ‘should have’ brought their claims.
The legal reform related to the removal of limitation period is not alien to the jurisprudence of children’s rights. Every jurisdiction in Australia, on the recommendations made by the Royal Commission into Institutional Responses to Child Sex Abuse, successfully abandoned time limitation laws for child sexual abuse claims in 2017. Similarly, the state of New York also extended the statute of limitations for child sexual abuse claims, allowing victims to file a claim until they are fifty-five years old. This push to reform legal responses to child sexual abuse across the world is invariably of momentous significance in the child right’s jurisprudence.
Lastly, as in India, it has been witnessed that minor victims and their families do not report the crime of sexual abuse because of the attached social stigma. Indubitably, the progressive approach enshrined in Mondi Murali Case will be instrumental in rectifying inherent limitations in the legal framework prescribed for child sexual abuse cases.
About the Author Aastha and Daksh are second-year LLB Student at Campus Law Centre, Faculty of Law, University of Delhi.