A part of my
comments on the TISS report on social audit of welfare institutions in Bihar
and the subsequent discussion thereupon has appeared today (21st Aug
2018) in the newspaper DNA. The comments that get published in a newspaper are
bound to be edited owing to space constraints. I have never met Mr. Mohammed
Tarique Qureishi before and have no malice against him whatsoever. I am also
not demanding a trial or a punishment because I have my own reservations and
opinions on ‘mandatory reporting’ which could not get expressed in the
published story. I merely reacted to the points raised by the reporter
primarily from an analytical angle. This note contains my detailed comments as
an activist belonging to this field as they were conveyed to the newspaper.
The link to the DNA article is given here.
The link to the DNA article is given here.
- Dr. Pravin Patkar
Protection
of Children from Sexual Offences Act, 2012 (POCSOA) Chapter V Section 19 makes it
abundantly clear that - any person who has any information on the offence
of sexual abuse being committed on a child or likely to be committed must
report this to the local or special juvenile police unit. This mandate is
regardless of what is stated in the CrPC.
The
responsibility for mandatory reporting is on all persons with no exceptions of
the ‘professional communication’ between a priest, lawyer, and a psychiatrists
or psychotherapist and their clients.
Chapter
V: Procedure for Reporting of Cases
19.
Reporting of offences. -
1. "Notwithstanding
anything contained in the Code of Criminal Procedure, 1973, any person
(including the child), who has apprehension that an offence under this Act is
likely to be committed or has knowledge that such an offence has been
committed, he shall provide such information to, -
a. the
Special Juvenile Police Unit, or
b. the
local police.
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Chapter
V: Procedure for Reporting of Cases
21.
Punishment for failure to report or record a case. -
1. Any
person, who fails to report the commission of an offence under sub-section
(1) of section 19 or section 20 or who fails to record such offence under
sub-section (2) of section 19 shall be punished with imprisonment of either
description which may extend to six months or with fine or with both.
2. Any
person, being in-charge of any company or an institution (by whatever name
called) who fails to report the commission of an offence under sub-section
(1) of section 19 in respect of a subordinate under his control, shall be
punished with imprisonment for a term which may extend to one year and with
fine.
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The provision has been made because in authoritarian set ups like a
family or a Children’s Home where the children are heavily dependent upon and
under the control of the persons in authority the crime gets unnoticed and
unreported, the child gets silenced and continues to get sexually offended.
These children urgently require medical and psychiatric intervention besides
protection. That is an important spirit behind the provision of mandatory
reporting in POCSOA.
POCSOA Section 19(5) places the responsibility on the police to - make
immediate arrangement to give the child such care and protection (including
admitting the child into shelter home or to the nearest hospital) within
twenty-four hours of the report. The police have to report the matter to
the Child Welfare Committee in 24 hours.
Hence a person who fails to report to the police is punishable by
imprisonment up to 6 months and the person in charge of the company or
institution who fails to report the commission of an offence by a subordinate
under his control is punishable with imprisonment up to 1 year. Does that mean
every person who gets to know about an offence or is under the apprehension
that an offence under POCSOA has happened must rush to the police to report
regardless of the matter having been already reported to the police?
Going by the text of POCSOA the answer is ‘Yes’ although in State
of Maharashtra vs Dashrath Lahanu
Kadu, the Bombay High Court has settled the matter by quoting CrPC and
stating that the provision requiring reporting of commission of an offence to
police is procedural provision to set criminal law in motion and held as under:
-
“19. ….....
As we have indicated, the events in this case clearly show that the information
had actually reached the Police Station ………………. Once the information is
reached…… Every eyewitness or every person who is in the know of the
circumstances relating to an offence is not further expected to go to the
Police Station so as to give a report of what he saw. Section 44 has been
designed with a purpose to secure information relating to the commission of an
offence with all expedition so that investigation should ensue.”
Unfortunately, the opening words of Sec 19(1) POCSOA override CrPC and thus
the confusion continues.
POCSOA Sec. 22 penalizes false reporting while POCSOA Sec 19(7)
protects the person who reports from any liability, whether civil or criminal,
for giving the information in good faith for the purpose of sub-section (1),
Non reporting is likely to
be defended on certain grounds which are common as given below;
In the case of TISS and the said Report these
excuses have a different meaning.
a)
‘Why
single me out when so many other agencies are committing the same offence of
not reporting?
This is an unacceptable defence. TISS particularly has a much higher technical
and ethical duty responsibility to know its responsibilities under the law and
to follow the law as it is funded, entrusted with research and training
responsibilities as the expert. There are legitimate means of sorting out one’s
differences with the law. Not following
the law is not one of them.
b)
“I
wasn’t sure if it had really happened. I am not an investigating agency”
This once again indicates poor knowledge about the law. Everyone knows
who the investigation agencies are. They are supposed to take over once the
matter is reported or once it gets to know of the incident. This defence is
counterproductive and discredits the report itself and strengthens the defence
of those Home authorities accused of mismanagement.
Criminal investigation is not the only or most important purpose of
mandatory reporting. It is to ensure that the child subjected to such offences
gets removed from that situation and is given protection, care and support
including immediate medical help and counselling. By not reporting one keeps
the child in the same situation without any help. That is unacceptable!
One must not forget that the research reports by a high-profile
institution are naively taken as scientific and rigorously verified facts and enjoy
considerable although uncritical acceptance.
If the claim on scientific rigour is maintained then the culpability
becomes even more stronger as it is not ‘just an uncritically recorded hearsay’
but an observation that has been sufficiently verified and hence reached a higher
level to the category of “Knowledge” or even higher than that of “Reasonable
belief”.
If the institution defends itself by abandoning the claim on
“Reasonable Belief” to its observations and conclusions then the very
credibility of this and many other so-called scientific research reports would
become questionable.
The objections to the propriety of mandatory reporting is a different
story altogether. As a practical approach many child rights activists hold that
every mandatory reporting should not drag the child and his primary support
systems to a police station and courts although it must result in an urgent act
of reaching out to the child and extending protection, care and support.
There is a need for change in the law to introduce a mechanism something
on the grounds of a multidisciplinary professional team that comes into the
picture immediately after mandatory reporting, examines the incidence and
decides the propriety of criminal investigation with due respect to the best
interest and rights of the child and that becomes binding on the police.
Regardless of the differences over it the fact is that the legal
provision is in force and applying it selectively will amount to arbitrariness
and inequality before the law. Giving the benefit of ignorance will be a gross
disaster as TISS is supposed to be full of ‘experts’ and ‘researchers’.
The provision of mandatory reporting is yet another example of the
trend to come up with poorly discussed and sloppily drafted legislation.
Dr.
Pravin Patkar
