The Supreme has issued a slew of guidelines on selection, functioning, and remuneration "support persons" to assist victims and their families in cases under the Protection of Children from Sexual Offences Act (POCSO Act).
A division bench of Justice S Ravindra Bhat and Justice Aravind Kumar issued the guidelines primarily to direct Uttar Pradesh Government in view of Section 39 of the POCSO Act which mandates States to frame guidelines for use by NGOs and professionals to provide trial and pre-trial assistance to survivors.
The Court, however also directed that such rules should be framed by all States, under the supervision of the National Commission for Protection of Child Rights (NCPCR).
The Court's observation came in petition filed by an NGO, Bachpan Bachao Andolan. The petition highlighted the difficulties faced by a survivor in a POCSO case in State of UP.
The Court remarked that the survivor, in this case, had been revictimised at several stages of the POCSO case.
The Court remarked that a support person can play a tremendous role in offering encouragement, reassurance, and guidance for POCSO victims and their families.
"A support person is to provide information, emotional and psychological support, and practical assistance which are often crucial to the recovery of the child. This can go a long way in helping them cope with the aftermath of the crime and with the strain of any criminal proceedings – in many ways a support person, acts as guardian ad litem for the child."
The Court recognised their role in offering encouragement, reassurance, and guidance with their knowledge of the legalese, armed with a compassionate child-friendly approach.
"A support person – whether involved from the early stages of lodging a report or brought on board shortly thereafter - can play a tremendous role in offering encouragement, reassurance, and guidance, merely from their knowledge of the legalese, armed with a compassionate child-friendly approach. Their potential in providing moral support and guidance, which directly translates to better and more just outcomes both in terms of prosecution, and rehabilitation, cannot be overstated."
The Court stated that while this framework created by the Rules, in furtherance of supporting victims of child abuse under the POCSO Act, is truly laudatory, it also requires proactive action from the State to shore up infrastructure and train human resources, accordingly – to bridge the gap between this entitlement on paper, and on-ground reality.
"This court in Alarming Rise in the Number of Reported Child Rape Incidents, In re , recorded that as per the Supreme Court Registrar’s report prepared in November 2019, a support person had been appointed only in 4% of POCSO cases. Much is yet to be done, therefore, for a declaration by this court of the mandatory nature of the appointment of support person (subject only to the consent of the child, guardian, or the person in whom the child trusts, as the case may be), to carry any weight. It is necessary that steps are taken to ensure that the POCSO Act and the mechanisms it creates, are functioning and effective," the court said.
In background of above, the Court issued set of 9 directions.
i. Assess capabilities in the state with respect to the support persons ecosystem for the selection, appointment, need for special rules/guidelines/Standard Operating Procedure in regard to their appointment/empanelment, training, career advancement and terms and conditions of employment;
ii. To achieve the purpose in (i) above, require the presence of the Chairperson, of the State Commission for the Protection of Child Rights (SCPCR), Secretary, State Legal Service Authority, senior-most President of a JJB and senior-most Chairperson of a CWC in the state, and a representative from the State Commission for Women;
iii. Prior to this meeting, details may be called from each District Child Protection Unit (DCPU), as to the list of support persons maintained by it as per Rule 5(1) – which is to include the names of persons or organisations working in the field of child rights or child protection, officials of children’s homes or shelter homes having custody of children, and other eligible persons employed by the DCPU [as prescribed under Rule 5(6)];
iv. After due consultations, frame such rules, or guidelines, as are necessary, relating to the educational qualifications and/or training required of a support person [over and above the stipulation in Rule 5(6)], and parameters to identify the eligible institutions or NGOs in the state, which can be accredited to depute qualified support persons, and consequently be added to the District Child Protection Unit (DCPU) directory as contemplated in Rule 5(1);
v. Ensure that the DCPU or CWC, as the State authorities may deem fit, is tasked with conducting periodic training for all support persons in the DCPU directory to impart knowledge not only on the Act, Rules, and the legal and court procedures involved in prosecuting a POCSO case, but also more fundamentally on communicating and assisting the children of various ages and backgrounds, with the sensitivity it the role demands;
vi. In the guidelines framed, ensure that a reporting mechanism through appropriate formats are prepared, to enable the support persons to send monthly reports as per Rule 4(12) to the concerned CWC, which 12 should then be compiled and sent to the SCPCR, and the state government;
vii. Prepare a framework, in the form of a Standard Operating Procedure (SOP) to ensure proper implementation of Rule 12 of the POCSO Rules, 2020, for reporting by the respective CWCs on the specific heads of information collected by them, on monthly basis. This shall include the number of cases, where support persons have been engaged in trials and inquiries throughout the state. The information should also reflect whether they were from the DCPU directory, or with external help from an NGO. Such list shall be reviewed on monthly basis by the SCPCR;
viii. The SOP prepared, and guidelines framed, are to be communicated to all JJBs and CWCs within a week of its preparation;
ix. Lastly, it is important to acknowledge that support persons who are independent trained professionals, would need to take up tasks which require intensive interactions in often, hostile environments, and consequently deserve to be paid adequate remuneration. Therefore, though the Rules8 state that such personnel should be paid equivalent to a skilled worker as per the Minimum Wages Act, 1948, this court is of the opinion that the remuneration paid for the duration of the work, should be commensurate to the qualifications and experience of these independent professionals, having regard to the salaries paid to those with comparable qualifications employed by the government, in PSUs, or other institutions run by the government (e.g. hospitals), and this too may be considered in the meeting to be convened by the Principal Secretary
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