New Delhi: The Supreme Court, on Friday, directed the Centre to consider the introduction of a “Romeo-Juliet” clause in the Protection of Children from Sexual Offences (POCSO) Act to prevent its rampant misuse and exempt “genuine adolescent relationships” from its stringent provisions.
The top court also held that the high courts cannot order mandatory medical age determination of victims at the stage of bail in cases under the POCSO Act.
“Considering that repeated judicial notice has been taken of the misuse of these laws, let a copy of this judgment be circulated to the Secretary, Law, Government of India, to consider initiation of steps as may be possible to curb this menace inter alia, the introduction of a Romeo-Juliet clause exempting genuine adolescent relationships from the stronghold of this law; enacting a mechanism enabling the prosecution of those persons who, by the use of these laws, seek to settle scores, etc,” the bench comprising Justice Sanjay Karol and Justice N Kotiswar Singh observed, as reported by TOI.
The bench, however, termed the law the “most solemn articulations of justice aimed at protecting the children of today and the leaders of tomorrow”.
Setting aside an Allahabad High Court order to this effect, it held that the high court’s direction of medical age determination of victims at the stage of bail exceeded the jurisdiction under Section 439 (grant of bail) of the Code of Criminal Procedure (CrPC).
The bench ruled that the high courts cannot use their bail jurisdiction to conduct “mini-trials” or issue mandatory investigative protocols that contradict existing laws.
“The determination of the victim’s age is a matter for trial, and the presumption which is accorded to the documents enumerated under the Section has to be rebutted there, for that is the appropriate forum to do so, not the bail court,” it held.
The case stems from a challenge by the Uttar Pradesh government against an Allahabad High Court order granting bail to an accused in a sexual assault case, apparently involving a minor girl.
While granting bail, the high court issued a slew of directions, including that in every case under the POCSO Act, police must conduct a medical age-determination test at the outset.
The top court, which set aside the high court judgement, however, left the part of the order granting bail as “undisturbed”.
The verdict faced the question of whether the high court, while dealing with bail pleas, could have issued directions mandating an age-determination test to be conducted in all cases involving the POCSO Act.
“It is unquestionable that the high court is a constitutional court. However, in the instant case, the error of jurisdiction by the high court was in exercise of a statutory power and not under the Constitution…,” the SC said.
“There is an additional aspect which, if the proposition as posited by the impugned judgment is upheld, would fall foul of. Such an aspect would be that a court, at the stage of bail, cannot conduct a mini-trial. This position is trite in law,” it added.
Referring to judgements, it has been clearly held that the determination of the victim’s age is a matter of trial and not at the stage of bail.
“If the age is under question, the bail court may examine the documents produced to establish age, but it will not enter into the question of those documents being correct or not so…,” the Court held.
“In cases where the victim’s courage may be tested by stigma, shame or the weight of societal scrutiny, medical evidence provides an impartial testament, grounding the pursuit of justice in the certainty of observable fact. It is, in essence, the bridge that links the personal suffering of the victim with the impartial adjudication of the law,” the bench said.
It referred to certain instances of the high courts, noting the misuse of the POCSO Act.
“Yet, when an instrument of such noble and one may even say basic good intent is misused, misapplied and used as a tool for exacting revenge, the notion of justice itself teeters on the edge of inversion. Courts have, in many cases, sounded an alarm regarding this situation,” the bench said.
“The misuse of the POCSO Act highlights a grim societal chasm – on the one end children are silenced by fear and their families are constrained by poverty or stigma, meaning thereby that justice remains distant and uncertain, and on the other hand, those equipped with privilege, literacy, social and monetary capital can manipulate the law to their advantage,” it added.
The bench also emphasised the ethical responsibility of lawyers to act as gatekeepers against frivolous or vindictive litigation, warning that unchecked misuse erodes public faith in the justice system.
