Constitution Of India and POSCO Act : Diversion from the trend of settled legal propositions regime

This article was written by Drishti Yadav, a student of Himachal Pradesh National Law University, Shimla.

List of The Statutes

1. The Code Of Criminal Procedure, 1973
2. The Indian penal code, 1860. Act no. 45 of 1860
3. The Constitution of India, 1950
4. The Criminal Law (Amendment) Act, 2013
5. The Protection of Children from Sexual Offences Act, 2012
6. Indian Evidence Act, 1872

Abstract

We are living in a very exciting time where the world is changing in social, economic and legal aspects. These changes reflect on the very people living in the societies of such countries. Changes may differ in time but the fact that change is happening remains constant for all developed, developing as well as under developed nations. Change in the behaviour of a society is evident in legal arena. Law can not remain static and rigid while the society is adapting to new changes. Hence, in my task/work I have decided to analyse and examine some of the recent judgements that took a different path from the trend. I have included two of the judgements by Supreme Court and Madras High Court respectively. P. Gopalkrishnan v. State of Kerala is the one that deals with the aspect of ‘Fair Trial’ and ‘Right to Privacy’ enshrined under Article 12 of the Constitution of India. I have tried to analyse both the rights and to answer the question as to what an extent can Right to Privacy of the victim is justified in stopping an accused from exercising its constitutional right of Fair Trial. giving effect to one right and making another a nullity will tear the fabric of the very protection provided by the Constitution. Another case that I have taken up for my study is Vijayalakshmi v. State of Tamil Nadu, rep. by The Secretary to Government, Home, Prohibition & Excise Department, Chennai & Others wherein the court has made appreciating turn from the regular path and decided the most relevant and most asked question about the intent and purpose of the POCSO Act. Court went into dealing with the question of certain biological factors that make teens commit a crime even though they do not have enough maturity to have an evil intention. Court ventured into the need of the hour to make amendments due to changing times.

In P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161, the Hon’ble Supreme Court has examined “intra-conflict of fundamental rights flowing from Article 21, that is, right to a fair trial of the accused and right to privacy of the victim”. Examine the issue.

In the instant case the court gave an important and landmark judgement that solved many discrepancies regarding the rights of accused as well as the victim. It is no doubt the intention of the legislator that made various laws for the accused as well victims, that these rights must not only be in statutes but should be applied by courts to full the true intent. We cannot say that the right of one is superior to the other. The question here should be regarding the importance of rights not merely the position of the ACCUSED or VICTIM. No doubt an accused is a person who is alleged to have committed a crime in which the victim has suffered physically or mentally or both. Both the parties are given equally important rights in order to avoid miscarriage of justice and to provide judgement in the light of just, fair and equity. Hence, the purpose behind those rights is the administration of justice in which not only the parties are interested but whole of the society is interested. Public interest plays equally important part along with the rights of the victim and the accused person and in order to provide a fair, just and equitable judgement, all these rights are to be placed at the same pedestal rather than on different steps of a staircase.

As per the judgement of the Supreme Court in V.K. Sasikala v. State rep. by Superintendent of Police[1] the court held that if we talk about the examination of an accused under Section 313 Cr.P.C., there is no reason to how the Appellant can be denied an access to the documents in respect of which prayers have been made in the applications before the learned trial Court. Court also analysed the importance of speedy delivery of justice and held that while the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the well-entrenched principles of law that have been laboriously built by illuminating judicial precedents is sacrificed or compromised. In no circumstance, the cause of justice can be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time. In this case the court gave permission to access of the evidence by the accused person. This principle of right of accused to have acess to the documents on which the prosecution basis its case is enunciated in the Constitution of India 1950 wherein under the Right to Life, the Right to Fair Trial has been codified under Article 21 and further detailed in the Code of Criminal Procedure, 1973 (CrPC). Apart from that CrPC Section talks about the supply of “documents” to the accused to enable him to prepare his defence. It mandates that the accused be provided copies of the police report, the FIR recorded under Section 154 CrPC, confessional statements etc. purpose behind doing so is not to make prosecution case impossible or difficult, it is done in order to let accused prepare his case for defence. This is the only way a fair trial can take place with both parties being aware of each other’s case.

Another imporatnant question that hold essence of the case is the admissibly of the memory card as evidence under section 3 of Indian Evidence Act and section 29 of Indian Penal Code. The Evidence Act defines “evidence” as…all documents including electronic records produced for the inspection of the court. Taking this further, the Information Technology Act, 2000 describes “electronic record” as any data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche. Therefore, a conjoint reading of the Evidence Act and the IT Act leads to the conclusion that electronic records such as video recordings on a pen drive or a mobile phone are also “documents” and are therefore relevant in evidence within the meaning of Indian Evidence Act[2] and Indian Penal Code[3].

The rights of the accused include access of documents under Section 207 of the CrPC in order to give justice to the provisions of Article 21 wherein it is given that access to documents is a facet of the right of the accused to a fair trial. He has the right to all those evidence on which the procecution is basing their case that can include copies of the statements and documents accompanying the police report, which the prosecution may use against him during the trial.[4] this scenario is not of universal application and it must depend upon facts and circumstances oof each case. These rights remain the same without any interpretation by the judges and they can be applied as ‘they are’. Courts do not need to apply them as they ‘ought to be’. The facts of the above case differ in the sense that it includes a case of rape and sexual harassment. It will be incorrect to say that rape is most heinous crime and other crimes are lesser heinous than that. The correct proposition would be to say that the cases of rape and sexual harassment include the question of moral turpitude and dignity which have a serious influence on society at large. This is the reason certain cases are held to be crimes against the state and not private entities. Since the cases of rape include public at large, the judgment, principles of law and interpretation of statutes must be done in order to keep public interest in mind. In other cases there might not be as much higher degree of caution as is needed in rape cases wherein the dignity of the prosecutrix is at stake. Hence if there is even the slighet of doubt regarding the possibility of misuse by furnishing copies to the accused, the rights of the accussed must be moulded but not taken away.[5]

The instant case is no doubt a peculiar case of intra-conflict of fundamental rights flowing from Article 21, that is the right to a fair trial of the Accused and the right to privacy of the victim, (and) it is imperative to adopt an approach which would balance both the rights. Here is the situation where there are two important rights and they cannot exist without nullifying the other. If the accused if given the copy of the memory card which is the evidence of rape, there might be a misuse which can be stopped but not prevented if happened. The damage done will be more harm than good. The intention of legislature is that every provision should remain operative. But where two provisions are contradictory, it may not possible to effectuate both of them and in result, one shall be reduced to futility as against the settled basic principle of ut res magis valeat qauam pereat.  In the land mark case of CIT v. Hindustan Bulk Carriers[6] the supreme court laid down five principles of rule of harmonious construction:

1. the courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions.
2. the provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its efforts, is unable to find a way to reconcile their differences
3. when it is impossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such a way so that effect is given both the provisions as much as possible.
4. courts must also keep in mind that interpretation that reduces one provisions to useless number or dead is not harmonious construction.
5. To harmonize is not to destroy any statutory provision or to render it fruitless.

Hence in the present case, these two contradicting provisions can only be harmonised so that both are given importance and none loses its effect is by giving permission to only access and examine the evidence by the accused so that its misuse can be prevented which will secure privacy of the prosecutrix and fair trial of the accused. It must be kept in mind that the “greater community interest” or “interest of the collective or social order” would be the principle to recognise the right of one which has to be protected and the right to fair trial is not singularly absolute. It takes in its ambit and sweep the right of the victim(s) and the society at large. The principle of privacy did not extinguish the rights of one party completely but rather curtailed them to the extent of protecting the rights of the other part. [7]

Recently, the Madras High Court has observed that “Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act”.

A reading of the Statement of Objects and Reasons of the POCSO Act would give a clear picture of the legislative intent behind that the Act which is to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India, 1950 and the Convention on the Rights of the Child. In order to decide whether a minor was capable to commit a crime according to his mental ability, another biological question must also be given equal importance. It is no doubt true that laws by the statutes are made keeping in mind the mental and biological ability of human beings. What an average man of a particular age is capable of doing decides the line to be drawn between all men of that age and others. According to Bio Physical Theory of crime causation, certain kinds of people commit crime. There are certain physical biological and mental factors within the criminals which made commit crime. They are mentally deficit or are less sensitive to pain and therefore they have little regard for the sufferings of others. The exponents of this approach were Lombroso, Ferri, Garofalo, Sheldon etc. they talked about the biological features of a human being that makes him capable of committing a crime. Hence our sttutes provide a certain age which is the average number presumed to be true to all individuals of that age to be innocent or evil. This age is mere a number decide by the Legislators at the time of making the law to be the age of people who are given benefits or are put into the category of people that are legally capable of committing a crime. This age is not absolute and can not be taken to be applied for all the people at any time in any part of the universe but in order to draw a line for the smooth administration of justice and safety of the society, the age is said to apply to all humans of that age anywhere in the country to which the law applies. One such biological factor is Pubertal hormones that organize the adolescent brain and behaviour.[8] Therefore, the age of adolescence, is the one associated with an amassing change in the neurological, cognitive and psychological systems of a person and one of the most important aspect is that the individual tries to establish their identity, develops emotional and biological needs during this period as a result of which the individual tends to look for new relationships, bonding and partnership. Digital content has made it easier nowadays that play a major role in influencing their growth and identity. There is a need to regulate this phenomenon rather than punishing it. Hence there can be a regulation in all the digital contents including films, series (Netflix series, web series) etc to display a warning under POSCO act in case that digital content includes relationship between teenagers. The role of law should not be to punish the human nature based on its biological factors. If law tries to make a basic human need an offence rather than regulating it then it will run counter-productively to understanding biosocial dynamics. This does not mean that court must turn blind eye on all the cases where the victim child has suffered because of the accused but there was a romantic relationship between them. These things have to be analysed from case to case depending upon the facts and circumstances.

The Supreme Court of India in Eera v. NCT Delhi[9] had observed that the purpose of POCSO is to treat minors as a class in themselves and to treat them separately so that no offence (sexual assault, sexual harassment, or abuse) is committed against them. This law distinguishes children from adults. Hence it is clear that the purpose of the Act was to provide protection to children from sexual assault and sexual harassment and for safeguarding the interest and well-being of children. [10] The act provides 7 to 10 years imprisonment as punishment in case the boy is major and the girl is minor but this provision is not attracted where the girl is major and the boy is minor. In the case of major girl, it is mostly said to be a mutual decision of the victim and the accused. In such cases where the age of the girl is below 18 years, even though she was capable of giving consent for relationship being mentally matured the provisions of the POCSO Act get attracted when the relationship transcends beyond platonic limits, punishing the boy of sexual assault, warranting a severe imprisonment of 7/10 years. It is no doubt true there are growing incidence of offences under the POCSO Act but it is equally true that punishment envisaged is also rigorous in nature ie, Rigorous Imprisonment. Sometimes it happens that such offences are against teenagers, who fall victim of the application of the POCSO Act at a young age without understanding the implication of the severity of the enactment.[11]

According to W.I. Thomas’s theory of Female Criminality[12], physiological, psychological and socio-cultural factors lead to female criminality. He believed that women have varieties of love in their nervous system and consequently their desire for response is more intense. According to Otto Pollak[13], many crimes that were to be prosecuted if committed by males, were either not identified or ignored if committed by females. He added that the women are instigators rather than perpetrators of criminal activity. According to Section 107-120 of Indian Penal Code 1860, abetment by instigation is also a crime. The theorists of Female criminality faced criticism but their work is of importance. They focused on the fact that women are not innocent based on their sex and men are not guilty based on their sex. Women can also be criminals just like men or both cannot be liable for the same offence just on the basis of sex and the recent judgement of the Supreme Court in Joseph Shine v. Union of India [14]establishes that situation which makes adultery no more punishable S. 497 IPC and S. 198(2) CrPC for men which was earlier not punishable for women just on the basis of their sex. This situation well establishes the principle of equal protection and equality before law under Article 14, non-discrimination on the basis of religion, caste, sex, race, place of birth or any of them under Article 15 (1) and protection of life and personal liberty which includes dignity and peaceful environment, under Article 21 which states that the dignity of an individual and sexual privacy is protected by the constitution under Article 21. A woman has an equal right to privacy as a man. The autonomy of an individual is the ability to make decisions on vital matters of life.[15]

The POCSO Act provides under Section 2(d) of the Act that a ‘Child’ is defined as a person below the age of 18 years. This act came into force in 2012 after a long and lenghthy discussion and research of child related offences and offenders. The law is serving its purpose from then. It was made taken into consideration the situation at that time. Though it has not been many years for the enactment but the situation seems to change and the instant case is one of many examples that support the present situation. Therefore, it is pertinent to take into notice ground realities, the definition of ‘Child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous 46 provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence.

The act must be understood as the one that is meant to protect the children not to punish their teen romance which is very usual in 21st century. There is a difference between regulation and penalising. Children, unlike adults lack the maturity to understand the penal sanction that can have effect on their entire lives. They do not even realise that they are committing a crime of such nature. They lack mens rea and sometimes even the knowledge of their act. Their acts are done in pursuance of their physical and biological needs. A boy or a girl both are equal in this regard and have to be treated equally since there is no statute that supports the proposition that women are not capable of committing a crime. Such acts of romantic relationship cannot be said to be similar to the ones that include rape or theft since they are done without the knowledge or consent. If both the parties have given their consent and both are mature enough to give that, I see no reason to treat them separately on the basis of sex. Times are changing more rapidly since ever. There was a time when the same law was sufficient for 60 to 80 years without amendments but now there are things in the acts that require changes. Society as well as arts have also changed that play an important role in human being’s lives. Judgements like Indian Young Lawyers Association v. The State of Kerala [16] has validly supported this proposition. The laws have to change with the changing society and ‘The Criminal Law (Amendment) Act, 2013’ came into force keeping this proposition in mind.

[1] (2012)9SCC771

[2] INDIAN EVIDENCE ACT, 1872 ACT NO. 1 OF 1872

[3] THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860

[4] Superintendent and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick & Ors. ((1981) 2 SCC 109)

[5] Tarun Tyagi v. CBI ((2017) 4 SCC 490)

[6] [2002] INSC 559

[7] Mazdoor Kisan Shakti Sangathan v. Union of India ((2018) 17 SCC 324)

[8] Frontiers in Neuroendocrinology, 26(3–4), 163–174.)

[9] (2017) 15 SCC 133

[10] Sunil Raikwar v. State, 2021 SCC OnLine Del 258

[11] The Protection of Children from Sexual Offences Act, 2012

[12] W.I. Thomas, The Unadjusted Girl, 120-121 (BiblioBazaar, 2010).

[13] Lee H. Bowker, The Criminal Justice System, 116-117 (Criminal Justice Program, University of Wisconsin-Milwaukee, 1978)

[14] 2018 SCC OnLine SC 1676

[15] The Constitution of India [India],1950

[16] 2018 SCC OnLine SC 1690