after hearing learned counsel for the parties as well as
learned Additional Solicitor General, that the NALSA’
Compensation Scheme should function as a guideline to the
Special Court for the award of compensation to victims of
child sexual abuse under Rule 7 until the Rules are
finalized by the Central Government.
The Special Judge will, of course, take the
provisions of the POCSO Act into consideration as well as
any circumstances that are special to the victim while
passing an appropriate order.
We need not emphasise that the legislation is gender
neutral and, therefore, the Guidelines will be applicable
to all children.
The Special Judge will also pass appropriate orders
regarding actual physical payment of the compensation or
the interim compensation so that it is not misused or
mis-utilized and is actually available for the benefit of
the child victim. If the Special Judge deems it
appropriate, an order of depositing the amount in an
interest-bearing account may be passed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.565 OF 2012
NIPUN SAXENA Vs UNION OF INDIA
Dated:SEPTEMBER 05, 2018
Subsequent to our order dated 10th August, 2018, the
Committee has looked into the suggestions made to the
Victim Compensation Scheme and now finally the Guidelines
have been placed before us under the heading of NALSA’s
Compensation Scheme for Women Victims/Survivors of Sexual
Assault/other Crimes-2018.
It has been brought to our notice that as far as
children are concerned, no Scheme of this nature has been
framed with regard to the victims of sexual abuse under
the provisions of the Protection of Children from Sexual
Offences Act, 2012 (for short “POCSO Act”).
Section 33 of the POCSO Act deals with the procedure
and powers of the Special Courts. Our attention has been
drawn to Section 33(8) of the POCSO Act. This reads as
follows:
“(8). In appropriate cases, the Special Court,
may, in addition to the punishment, direct
payment of such compensation as may be prescribed
to the child for any physical or mental trauma
caused to him or for immediate rehabilitation of
such child.”
Section 45 of the POCSO Act deals with the rule
making power and it refers, inter alia, to the payment of
compensation under sub-section (8) of Section 33 of the
POCSO Act.
Our attention has also been drawn to Rule 7 of the
Protection of Children from Sexual Offences Rules, 2012.
This Rule reads as follows:
“7. Compensation .-(1) The Special Court may, in
appropriate cases, on its own or on an
application filed by or on behalf of the child,
pass an order for interim compensation to meet
the immediate needs of the child for relief or
rehabilitation at any stage after registration of
the First Information Report. Such interim
compensation paid to the child shall be adjusted
against the final compensation, if any.
(2) The Special Court may, on its own or on an
application filed by or on behalf of the victim,
recommend the award of compensation where the
accused is convicted, or where the case ends in
acquittal or discharge, or the accused is not
traced or identified, and in the opinion of the
Special Court the child has suffered loss or
injury as a result of that offence.
(3) Where the Special Court under sub-section (8)
of section 33 of the Act read with sub-sections
(2) and (3) of section 357A of the Code of
Criminal Procedure, makes a direction for the
award of compensation to the victim, it shall
take into account all relevant factors relating
to the loss or injury caused to the victim,
including the following:
(i) type of abuse, gravity of the offence and the
severity of the mental or physical harm or injury
suffered by the child;
(ii) the expenditure incurred or likely to be
incurred on his medical treatment for physical
and/or mental health;
(iii) loss of educational opportunity as a
consequence of the offence, including absence
from school due to mental trauma, bodily injury,
medical treatment, investigation and trial of the
offence, or any other reason;
(iv) loss of employment as a result of the
offence, including absence from place of
employment due to mental trauma, bodily injury,
medical treatment, investigation and trial of the
offence, or any other reason;
(v) the relationship of the child to the
offender,if any;
(vi) whether the abuse was a single isolated
incidence or whether the abuse took place over a
period of time;
(vii) whether the child became pregnant as a
result of the offence;
(viii) whether the child contracted a sexually
transmitted disease (STD) as a result of the
offence;
(ix) whether the child contracted human
immunodeficiency virus (HIV) as a result of the
offence;
(x) any disability suffered by the child as a
result of the offence;
(xi) financial condition of the child against
whom the offence has been committed so as to
determine his need for rehabilitation;
(xii) any other factor that the Special Court may
consider to be relevant.
(4) The compensation awarded by the Special Court
is to be paid by the State Government from the
Victims Compensation Fund or other scheme or fund
established by it for the purposes of
compensating and rehabilitating victims under
section 357A of the Code of Criminal Procedure or
any other laws for the time being in force, or,
where such fund or scheme does not exist, by the
State Government.
(5) The State Government shall pay the
compensation ordered by the Special Court within
30 days of receipt of such order.
(6) Nothing in these rules shall prevent a child
or his parent or guardian or any other person in
whom the child has trust and confidence from
submitting an application for seeking relief
under any other rules or scheme of the Central
Government or State Government.”
On a reading of the aforesaid Rule, it appears to us
that the Special Court may, in appropriate cases, on its
own or on an application having been filed, pass an order
for interim compensation for the immediate needs of the
child. Of course, this Rule is a gender neutral
provision.
Ms. Pinky Anand, learned Additional Solicitor General
informs us that there is a proposal to amend the POCSO
Act and that the Rules will be framed after the amendment
in the POCSO Act is made.
In the interim, therefore, the situation is that
there are no Guidelines or Rules that are applicable on
the basis of which the Special Court can pass appropriate
orders.
Keeping this hiatus in mind, we are of the opinion,
after hearing learned counsel for the parties as well as
learned Additional Solicitor General, that the NALSA’
Compensation Scheme should function as a guideline to the
Special Court for the award of compensation to victims of
child sexual abuse under Rule 7 until the Rules are
finalized by the Central Government.
The Special Judge will, of course, take the
provisions of the POCSO Act into consideration as well as
any circumstances that are special to the victim while
passing an appropriate order.
We need not emphasise that the legislation is gender
neutral and, therefore, the Guidelines will be applicable
to all children.
The Special Judge will also pass appropriate orders
regarding actual physical payment of the compensation or
the interim compensation so that it is not misused or
mis-utilized and is actually available for the benefit of
the child victim. If the Special Judge deems it
appropriate, an order of depositing the amount in an
interest-bearing account may be passed.
A copy of the NALSA’s Compensation Scheme as well as
a copy of this order should be sent by the Registry to
the Registrar General of every High Court with a
direction that the Registrar General will circulate them
to all the concerned District Judges for circulation to
the Special Judges and the State, District and Taluka
Legal Services Committees.
6
A copy of the Scheme and a copy of the order passed
by this Court will also be sent by the Registry to all
the Judicial Academies for information.
We also direct that the publicity should be given to
the Scheme as well as the order passed by us on regular
basis until the Rules are finalized by the Central
Government. Learned Additional Solicitor General assures
us that the needful will be done on a regular basis
through all forms of media.
Needless to say that the Scheme and the Guidelines
will be operational from 2nd October, 2018.
We acknowledge and appreciate the efforts put in by
the Committee and NALSA in framing the Scheme and
assisting us in its extension to child victims.
After the Scheme and the Guidelines are operational
for some time, if necessary, revisions can be made.
.............................J.
(MADAN B. LOKUR)
.............................J.
(S. ABDUL NAZEER)
.............................J.
(DEEPAK GUPTA)
NEW DELHI
SEPTEMBER 05, 2018
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