Madras High Court Addresses Gender Disparities in POCSO Cases
The Madras High Court recently highlighted a concerning trend in the application of the Protection of Children from Sexual Offences (POCSO) Act, where cases involving consensual relationships between minors are disproportionately filed against boys. Despite the Act’s gender-neutral stance, the Bench of Justices GR Swaminathan and V Lakshminarayanan noted the unequal treatment, emphasizing that “the male child is unfairly criminalized and his family drawn into Juvenile Justice Board proceedings, while the treatment of the two families remains unequal for the same relationship.” [S Venkatesh v. State of TN]
To counter this disparity, the Court recommended that law enforcement inform the girl’s guardians that the boy’s family holds an equivalent right to lodge a complaint. This suggestion is part of a broader critique by the Bench on systemic issues in implementing the POCSO Act in Tamil Nadu.
Continued Use of Prohibited Medical Tests
The Court expressed alarm over the continued use of the prohibited two-finger test and other hymen examinations, which persist despite being banned. Such practices still occur in courtroom appeals related to sexual crimes. The Bench called for strict adherence to medico-legal guidelines, periodic audits, and the training of medical and judicial officers.
Furthermore, the Court advocated for the discontinuation of potency tests in cases of consensual adolescent pregnancies, suggesting that DNA analysis and other scientific methods be employed instead. A directive was issued to the Tamil Nadu Chief Secretary to form a committee to evaluate these recommendations, with a response expected within four months.
Focus on Child-Centric Legal Processes
Emphasizing the centrality of the child in legal processes, the Court raised concerns about mandatory reporting requirements that deter pregnant minors, especially those in consensual relationships or customary adolescent marriages, from accessing antenatal care or medical termination of pregnancy. It proposed standardized consent forms to allow compliance with reporting laws without revealing the minor’s identity where legally permissible.
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The Bench also suggested a uniform referral mechanism to ensure minors receive timely abortion information and access to legal recourse when pregnancies exceed 24 weeks. Moreover, the Court noted that minors in conflict with the law are often detained in observation homes despite bail being the norm, highlighting issues such as the non-provision of free First Information Reports, night-time interrogations, and the absence of parents during inquiries.
Improving Judicial Infrastructure and Processes
Additional systemic shortcomings identified by the Court included delays in recording child victim testimonies, inconsistent anonymization of judgments, and insufficient child-witness deposition facilities. The Bench proposed establishing exclusive POCSO courts in districts with over 100 pending cases.
These observations emerged from a public interest litigation (PIL) filed by S Venkatesh, who sought a directive for 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’s plea, based on incorrect RTI information, was ultimately found to lack foundation as the High Court confirmed that leave to appeal had been granted.
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The Bench clarified that neither a citizen nor a third party possesses the legal right to compel the government to initiate litigation. However, the State informed the Court of its independent decision to file a curative petition, leading to the case’s disposal.
Advocate SN Ravichandran represented the petitioner, while Additional Government Pleader M Guruprasad and Additional Public Prosecutor CR Malarvannan represented the State authorities.
[Read Judgment]
