Background of the case:
In We the Women of India v. Union of India & Ors. (Writ Petition(s)(Civil) No(s).1156/2021),the Supreme Court directed the State Governments to ensure strict implementation of POCSO Rules, 2020 particularly in the light of the scope and significance of a ‘support person’. In Supreme Court’s previous order, the Hon’ble Apex Court had required the Principal Secretary of Department of Women and Child Welfare (“DWCW”) in Uttar Pradesh to frame guidelines with respect to:
- Assessment of capabilities of support persons ecosystem in the state to enable a structure of selection, appointment, training, career advancement, other standard operating procedures, etc.
- Development of a reporting mechanism to enable support persons to send monthly reports to the CWC as required by Rule 4(12)
- Creation of a robust framework in the form of a Standard Operating Procedure to ensure compliance with Rule 12 of POCSO Rules that provide for Monitoring the Implementation of the Act
- Standardizing the remuneration paid to the support persons to be adequate and commensurate to their qualifications and experience considering the salaries paid parallelly to those professionals with equivalent qualifications employed by the Government in PSUs or other government institutions.
Upon receiving notice of the Ministry of Women and Child Development (“MWCD”), the National Commission for Protection of Child Rights (“NCPCR”) filed its affidavit highlighting the steps taken by it. Similarly, even the State of Uttar Pradesh filed an affidavit disclosing the supplementary guidelines framed that laid down instances when the support person should be made available.
While the mention of ‘support person’ is absent from the bare statute of 2012, the concept was institutionalized through the POCSO Rules of 2020 to be interpreted in the light of ‘experts’ provided under Section 39 of POCSO Act whose assistance can be sought during the pre-trial and post-trial stages of a case.
Under the POCSO Rules, 2020, a ‘support person’ has been defined under Rule 2(1)(f) as a person assigned by the Child Welfare Committee to render assistance to the child through the process of investigation and trial, or any other person assisting the child in the pre-trial or trial process in respect of an offence under the Act.
Supreme Court’s observations on the scope of ‘support person’:
The Court through this landmark decision upheld that the need for a support person is not optional. Moreover, it should not be left to the discretion of the parents, but the availability of a support person should be informed to the parents of the victims in all cases.
The provision of support persons is a mandatory obligation of the State which can only be excused on good reasons recorded by the CWC.
Decision of the Apex Court:
The Apex Court further directed the NCPCR to formulate model guidelines after due consultation with Governments of all States and Union Territories based on which the States and UTs can frame their rules with respect to support persons under Section 39 of the POCSO Act. The Hon’ble Court gave NCPCR 8 weeks to formulate draft guidelines for the purpose of circulation to all States for their comments and suggestions, post which the guidelines could be finalized.
As per the Court, the guidelines must consider the following factors:
- Requirement of a uniform standard of education for support persons for which the minimum qualification may be graduation with experience in child psychology, social work or other child welfare related field.
- Framing a uniform policy for management of support persons in the concerned Ministry at appropriate stage in order to avoid restriction of engagements of support persons to a number of cases for a time limit of 3 or 5 years.
- Setting up a reasonable remuneration structure to support persons that commensurate with their work and functions.
- Creation of an All India Portal that contains details of all support persons in concerned States and UTs for reference and access of all individuals, organisations, JJBs, CWCs, etc.
- Maintenance of a panel in each State of NGOs and support persons who may provide their services to CWCs or JJBs if required.
Through this decision, the Division bench of the Supreme Court took a holistic approach towards POCSO cases by highlighting the significance of support persons to ensure their involvement and assistance to meet the psychological and practical needs of a child which are crucial ingredients for their proper recovery and rehabilitation.