The Madras High Court also said that it wants to ensure that the 'two-finger' test and archaic potency tests are discontinued.
“This court still encourages the college concerned to require the students to reflect on the evils of untouchability and how they, as citizens of this country, can contribute to its elimination,” the judge said. (Wikimedia Commons)
The Madras High Court had sought the details of cases registered under the POCSO Act against minor boys and girls in consensual relationships. It may order quashing of such cases if the proceedings are ultimately going to be against the interest and future of the children involved.
While dealing with a habeas corpus petition seeking to trace a minor girl who eloped with a minor boy, a bench — comprising Justices N Anand Venkatesh and Sunder Mohan — directed the Tamil Nadu Director General of Police to identify cases involving consensual relationships from among the 1,274 pending cases, and to place them before the court so that it could understand the issues involved and take a decision accordingly.
The court’s attention was drawn to a case in Dharmapuri where a boy and girl, who were below 18 years, eloped. The girl also became pregnant and, ultimately, both of them were picked up by the police.
The boy was said to have been arrested straight away without issuing a Section 41(A) notice under the Code of Criminal Procedure, based on a complaint by a Block Development Officer.
The girl, because she was pregnant, was not sent with her parents. Instead, she was kept in a girls’ home — run by the Social Welfare Department — for nearly one month and was released only a week after the FIR was registered.
The boy was kept under custody in a “Place of Safety” (POS) for 20 days before he was granted bail.
Noting that both minors have already undergone mental trauma and that they (the court) did not want to prolong the agony faced by them at such a young age, the court quashed the case filed against duo.
“This is a sample case that illustrates the fact that the instructions given by the POCSO Committee and the circular issued by the Director General of Police have not percolated into the system,” the judges noted.
“If the instructions and the guidelines were really followed in letter and spirit, there would have been no reason for the girl to spend nearly a month in a home and the boy to spend nearly 20 days in a POS.
“What is even more shocking is that both are ‘children’ in the eyes of the law — and whereas, the girl was treated as a victim and the boy was treated as a child in conflict with the law,” the judges noted.
Further, the Bench observed that this case must be taken as a wake-up call to ensure that such incidents do not happen in the future.
“It is sad that none of the stakeholders were sensitive to the fact that both the boy and the girl were under 18 years, and both of them are categorised as children under the relevant enactment,” the judges said.
Stating that the social welfare officers and the police seem to be acting as per the directions of Child Welfare Committee (CWC) and Juvenile Justice Board without any independent say, the judges directed the Legal Services Authority and the State Judicial Academy to conduct sensitisation programmes for the officers.
The court also said that it wants to ensure that the two-finger test and the archaic potency tests are discontinued.
The court also sought a report, if any, on references to the two-finger test done on minor girls.
Also terming the potency test as a method of the past, the judges said, “Science has improved by leaps and bounds and it is possible to conduct this test by just collecting a blood sample. Such advanced techniques are being followed around the world and we should also fall in line.”
The judges adjourned the case to 11 August.
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