New Delhi, Jan. 9 -- The Supreme Court on Friday flagged what it described as rampant misuse of the Protection of Children from Sexual Offences (POCSO) Act and urged the Centre to consider introducing a "Romeo-Juliet" clause to carve out an exception for "genuine adolescent relationships" from the law's stringent provisions.
In a verdict that also drew clear limits on bail-stage adjudication in POCSO matters, a bench of Justices Sanjay Karol and N Kotiswar Singh held that high courts cannot direct mandatory medical age-determination tests of victims at the time of hearing bail pleas. The court said such steps amount to prescribing investigative protocols and conducting "mini-trials", which exceeds the scope of bail jurisdiction under Section 439 of the Code of Criminal Procedure (CrPC).
"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 said.
Even while drawing attention to misuse, the Supreme Court underscored the object of the legislation, calling it among the "most solemn articulations of justice aimed at protecting the children of today and the leaders of tomorrow".
The ruling came while setting aside an Allahabad High Court order that, while granting bail to an accused in a sexual assault case involving an apparently minor girl, issued a series of directions, including that in every POCSO case police must conduct a medical age-determination test at the outset.
The Uttar Pradesh government had challenged the high court's directions before the Supreme Court, contending that the bail court could not issue blanket orders mandating medical tests in all POCSO cases. The apex court agreed with the state's contention on jurisdiction, holding that the high court's directions went beyond the legal limits of bail proceedings.
Setting aside the Allahabad High Court order to that extent, the Supreme Court said the direction on mandatory medical age determination at the bail stage "exceeded the jurisdiction under Section 439" of the CrPC. The bench clarified that while the high court is a constitutional court, the error in this instance arose from the exercise of statutory power and not constitutional authority. "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 judgment said.
The Supreme Court further held that accepting such a proposition would violate settled law on bail adjudication. "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.
Authored by Justice Karol, the verdict examined whether a high court, while dealing with bail pleas, could mandate an age-determination test to be conducted in all cases under the POCSO Act. The bench ruled it could not.
"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," the Supreme Court held. It noted that if the age is disputed, the bail court may peruse the documents produced to establish age but cannot enter into an assessment of their correctness at that stage. "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.," it said.
At the same time, the bench acknowledged the value of medical evidence in ensuring objectivity. "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 observed, describing such evidence as a bridge between the victim's suffering and the neutral adjudication of law.
Despite setting aside the high court's directions, the Supreme Court left the bail granted to the accused "undisturbed".
The verdict also took note of judicial observations on the misuse of the POCSO Act, warning against its deployment as a tool for vendetta. "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 court described the misuse of the law as revealing a sharp social divide, where some victims remain silenced by fear, poverty or stigma, while those with "privilege, literacy, social and monetary capital" can manipulate legal processes.
In its directions, the Supreme Court asked the registrar (judicial) to circulate a copy of the judgment to the Secretary, Law, Government of India for considering steps to curb misuse. It also directed that the judgment be shared with the registrar general of the Allahabad High Court for follow-up action, including communication to trial courts.
The bench also pointed to the ethical responsibility of lawyers, urging them to act as gatekeepers against frivolous and vindictive litigation, cautioning that unchecked misuse risks undermining public faith in the justice system.
Published by HT Digital Content Services with permission from Millennium Post.