-By Abhijeet Shrivastava
Introduction
As is well known, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (“Atrocities Act”) was enacted by the Indian Parliament in 1989 as an anti-discrimination law. This legislation focused on countering negative discrimination against persons from the aforesaid categories. It crafted offences which had a nexus with their marginalized identities and guaranteed special safeguards to such persons during trials. On the other hand, the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) recognized the need to create special provisions for sexual offences against children and provide for concomitant safeguards to ensure a safe and accessible environment for child survivors.
Both these Acts establish ‘Special’ Courts which are empowered with unique powers for the disposal of cases arising from their respective Acts. POCSO Special Courts and Atrocities Courts are mandated to follow their own peculiar procedures as described in their Acts, tailored to their respective stakeholders. However, what happens in case the same set of facts constitutes offences under both the Acts, i.e., when the survivor is a child who also belongs to categories covered by the Atrocities Act? In such intersectional cases, the question arises as to the procedure prescribed by which Act is to be followed, or put differently, which of the two Special Courts has jurisdiction to try the case.
No Supreme Court holding has dealt with this question thus far. In the case of the Madhya Pradesh High Court, this question has been considered twice with contrary opinions delivered by benches of coordinate strength. In Mohd. Juned v. State of Madhya Pradesh (2014), Maheshwari, J. had held that Atrocities Courts shall have exclusive jurisdiction in such situations. More recently, Pathak, J.’s judgment in Smt. Sunita Gandhwara v. State of Madhya Pradesh (2020) instead held that POCSO Courts shall try such cases exclusively, without recognizing the prior view delivered in 2014, thus leading to great confusion.
It is alarming that a question of such importance has remained unsettled in most jurisdictions within India, likely adding on to the difficulties faced by possibly the most sensitive intersectional stakeholders of criminal justice administration. My aim in this post is to engage readers with why Pathak, J.’s view favouring the exclusive jurisdiction of POCSO Courts is correct, and ought to be preferred by Courts across India.
Textualist Reading
One of the reasons that this jurisdictional conflict is prima facie difficult to reconcile is the fact that the Atrocities Act and the POCSO Act contain similar non-obstante clauses, given that both the legislations are special laws. Section 20 of the Atrocities Act provides that the Act’s effects shall override anything inconsistent contained in any other statute in force. Section 42A of the POCSO Act, while stating that its provisions are in ‘addition’ to and not in derogation of any other law, cautions that “in case of any inconsistency”, the Act’s provisions shall prevail pro tanto.
As the Apex Court confirmed in Union of India v. Ranjit Kumar (2019), in case of ‘irreconcilable’ conflicts between two laws (including non-obstante clauses), the subsequent law must ordinarily be given effect. Considering this, at the outset, there must be a presumption in favour of the POCSO Act’s provisions in cases of conflict with the Atrocities Act, since the former was enacted over two decades after the latter. In this vein, the provisions of Section 14 of the Atrocities Act highlight that cases arising from the Act shall be heard by an ‘exclusive’ special court, with similar provisions in Section 28 of the POCSO Act for POCSO Courts. If one reads these two Sections as irreconcilable where offences under both Acts are triggered, then since the POCSO Act is a ‘subsequent’ legislation, Section 28 must prevail.
Nonetheless, even absent this, there is a crucial distinction between the two provisions. Section 28(2) of the POCSO Act reads that when POCSO Courts try offences under the Act, they ‘shall’ also try offences “with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974) be charged at the same trial”. This power (and duty) conferred on POCSO Courts requires them to try not only offences from the POCSO Act but also “any” other offences arising from the same facts. From an ordinary reading, this would surely include offences prescribed under the Atrocities Act, meaning that POCSO Courts can try offences under both Acts.
Interestingly, no such power has been conferred on Atrocities Courts. As recognized by Pathak, J.’s view in Smt. Sunita (¶41), this is especially important since the Atrocities Act has undergone many amendments across the years (most recently in 2018), and no new provision empowering Atrocities Courts in this manner has been introduced. Consequently, a textual reading indicates that the Legislature has intended only for the POCSO Courts to try offences under both the Acts, meaning that the procedural provisions under the POCSO Act must be followed in intersectional cases. There is another equally vital factor that favours preference to POCSO Courts, particularly, the ‘object and purpose’ test that courts must apply when two non-obstante clauses conflict.
Purposive Reading
In Sanwar Singh v. Kasturi Lal (1976), the Apex Court held that wherever there are two statutes with conflicting provisions that both contain non-obstante clauses, then recourse must be had to their respective ‘object and purpose’ for a harmonious reading. In other words, based on the separate schemes of rights and duties contained in the conflicting statutes, courts must decide which scheme the legislature considered more ‘special’. Given this, let us briefly explore the schemes of the two Acts.
There are, evidently, some common themes in the Acts, since both the Acts cater to stakeholders considered sensitive by virtue of their higher vulnerability to crimes and resultant harms, thus requiring greater protection than victims generally. Specific commonalities in the Acts include, for instance, the requirement for the speedy disposal of proceedings [in Section 14(3) of the Atrocities Act and Section 35(2) of the POCSO Act].
However, based on the recognition that the mind of a child is extremely delicate and immensely susceptible to trauma or mental ordeals during the trial, the POCSO Act provides several additional safeguards for the special care of children, which are absent in the Atrocities Act. Consider the provisions of Section 33 of the Act, which make it POCSO Courts’ duty to create a child-friendly atmosphere by ensuring the presence of parents or other persons in whom the child has confidence, to ensure that the child is not called to testify in court repeatedly, to ensure that the child’s dignity is maintained at all times, that the child is not character-assassinated, and so forth.
Further, Section 35(1) obligates POCSO Courts to record the child’s testimony within thirty days of taking cognizance, Section 36(1) requires them to ensure that the child does not see or is exposed to the accused at any time during the trial, and Section 37 requires them to hold trials in camera in the presence of the children’s parents or persons they trust. Moreover, Section 38 empowers POCSO Courts to call translators, interpreters, special educators, and qualified experts in child communication, wherever necessary. This list is merely illustrative, and the Act contains many more safeguards and duties.
These duties are not cast on Atrocities Courts under the Atrocities Act in relation to offences where the survivor is a child. Would the Legislature have intended to deprive children from the SC/ST categories of these safeguards? That seems abhorrent to the ‘object and purpose’ of the POCSO Act, which creates these rights and safeguards for all children, notwithstanding their identity. A counter may arise that the Atrocities Courts could in practice treat the POCSO Act’s provisions as guidelines to follow, and thus, this alone does not preclude them from trying offences under the POCSO Act. This, however, is flawed reasoning on five counts.
First, the very relegation of these safeguards from the status of the rights of the survivors and duties on the court to having the lesser effect of guidelines is undesirable. Second, even if all Atrocities Courts indeed treated these provisions as guidelines with sincerity, these courts lack the kind of infrastructure, staff, and training contemplated under the POCSO Act’s aforementioned provisions, as Pathak, J. recognized in Smt. Sunita (¶47). Third, courts are bound to uphold interpretations which provide the maximal effect to rights and prefer interpretations which circumvent avoidable hardships. This mandates an interpretation that does not deny children from SC/ST categories the right to an accessible and safe trial.
Fourth, as I have explored elsewhere for a similar jurisdictional question, it would offend the right to equality if persons were denied the right to friendly proceedings as prescribed in general Acts for no reason other than their identity characteristics. Thus, denying children from the SC/ST categories the binding safeguards from the POCSO Act would lead to unconstitutional results.
Lastly, at any rate, an interpretation which favours Atrocities Courts over POCSO Courts would render Section 28(2) of the POCSO Act nugatory, insofar as it specifically makes it the duty of POCSO Courts to try “any” offences the accused is charged with, including the Atrocities Act’s offences, as explained earlier. Read with Section 42-A, this also makes the safeguards contained in other Acts such as the Atrocities Act binding on POCSO Courts, since the POCSO Act is in ‘addition’ to other laws, as discussed above. As courts are bound to avoid interpretations which render explicit provisions nugatory, the POCSO Courts’ jurisdiction must be given preference.
Given this five-fold analysis, no doubt can be had that POCSO Courts must indeed enjoy exclusive jurisdiction over criminal cases where there seem to be prima facie overlaps between the POCSO and Atrocities Acts’ offences.
Conclusion
We have seen that legislative intent seems clearly in favour of the POCSO Courts’ exclusive jurisdiction in potential overlaps with the Atrocities Act. This result remains the same from a textualist, purposive, harmonious, and constitutionally sound reading of the two Acts. As discussed, this question remains unsettled or not deliberated upon in most State jurisdictions, with differing co-ordinate bench views in at least Madhya Pradesh. However, by this juncture, the view defended in this post has found support in the holdings of the Hyderabad High Court (2015), Madras High Court (2017), Patna High Court (2019), and most recently, the Bombay High Court (2020). One can only hope that someday, the Supreme Court is seized of this question and answers it along the same lines for the uniform application of this interpretation. Until that day, it is hoped that the positive trend exhibited by these High Courts continues and that their stance provides much-needed guidance to Special Courts from across India in facilitating justice for one of the most vulnerable stakeholders of our legal system.
[ The author is a third-year law student at Jindal Global Law School.]