POCSO cases registered only against boys, two-finger test still being used: Madras High Court

The Madras High Court recently noted that cases under the Protection of Children from Sexual Offences (POCSO) Act involving consensual relationships between minors were being registered only against boys, despite the Act being gender-neutral. [S Venkatesh v. State of TN]

A Bench of Justices GR Swaminathan and V Lakshminarayanan said,

"The male child is unfairly criminalized and his family drawn into JJB proceedings, while the treatment of the two families remains unequal for the same relationship."

To remedy this, the Court suggested that when the parents or guardians of a girl insist on registering a case, the police should inform them that the boy and his family have the same right to lodge a complaint.

This was one of the several other systemic gaps the Court flagged in the implementation of the POCSO Act in Tamil Nadu, including the continued use of the prohibited two-finger test and hymen-related examinations.

“Even in court rooms during appeals in sexual crimes, the discussion on hymen is prevalent,” the Court noted.

It called for strict compliance with medico-legal guidelines, periodic audits and sensitisation of medical and judicial officers. It also recommended discontinuing potency tests - including in cases arising from consensual adolescent pregnancies - and relying on DNA analysis and other scientific methods.

The Court directed the Tamil Nadu Chief Secretary to constitute a committee comprising secretaries of the departments concerned to examine its suggestions. The government has been asked to file its response before the High Court Registry within 4 months.

“The child ought to be at the centre of the process at every stage,” the Court said.

Among other issues, the Bench flagged mandatory reporting requirements that deter pregnant minors - particularly those in consensual relationships or customary adolescent marriages - from seeking antenatal care or medical termination of pregnancy.

It suggested standard consent forms that would allow doctors to comply with mandatory reporting requirements without disclosing the minor’s identity wherever legally permissible. It also called for a uniform referral mechanism to ensure that minors receive timely information about abortion and access to courts when the pregnancy has crossed 24 weeks.

The Court further noted that children in conflict with law were routinely detained in observation homes despite bail being the rule. It flagged the non-supply of free copies of First Information Reports, night-time interrogation, absence of parents during enquiries and unnecessary production of children before Child Welfare Committees.

Other gaps identified included delay in recording the evidence of child victims, last-minute summons, inconsistent anonymisation of judgments, inadequate child-witness deposition rooms and insufficient exclusive POCSO courts. The Court suggested setting up exclusive POCSO courts in districts where more than 100 cases are pending.

“The law relating to children is still developing. It requires constant tweaking and readjustments. This is one such attempt,” the Bench observed.

The observations came in a public interest litigation (PIL) filed by one S Venkatesh, who sought a direction compelling the Tamil Nadu government to file a curative petition against the Supreme Court’s acquittal of Dashwanth in a 2017 child rape and murder case.

Venkatesh relied on a Right to Information response stating that the Madras High Court had not granted the accused a certificate to appeal to the Supreme Court. The Supreme Court had relied on the existence of such leave when it expanded the appeals to permit a challenge to the conviction itself.

However, the High Court examined its earlier judgment and found that leave had, in fact, been granted. It held that the RTI response furnished to Venkatesh was incorrect and that the foundation of his plea did not survive.

The Bench also held that a citizen or third party had no vested legal right to compel the government to initiate litigation. The State nevertheless informed the Court that it had independently decided to file a curative petition. The Bench recorded the submission and disposed of the case.

Advocate SN Ravichandran represented the petitioner.

Additional Government Pleader M Guruprasad and Additional Public Prosecutor CR Malarvannan represented the State authorities.

[Read Judgment]