The Kerala High Court recently held that minor survivors of sexual harassment under the Protection of Children from Sexual Offence Act (POCSO Act) are also eligible for compensation under the Kerala Victim Compensation Scheme, 2017. [Kerala State Legal Service Authority & Anr. v State of Kerala & Anr.]
Notably, Justice Kauser Edappagath found that the existing State compensation scheme, despite a recent amendment in 2021, was inadequate when it comes to compensating survivors of sexual abuse under the POCSO Act.
The Court found that there was no compensation scheme specifically for survivors in POCSO cases, nor were sexual offences such as penetrative sexual assault, aggravated sexual assault, aggravated penetrative sexual assault, sexual harassment, and using a child for pornography, covered under either of the two Schedules of the Kerala Victim Compensation Scheme.
The judge, therefore, directed the State government to either formulate a comprehensive victim compensation scheme for the survivors in POCSO cases or to make necessary amendments to the Kerala Victim Compensation Scheme, 2017 so that survivors in POCSO cases are also covered by the scheme.
The High Court added that until such a comprehensive victim compensation scheme is formulated, special courts dealing with POCSO cases can award compensation to child survivors in line with the Supreme Court’s directives in Nipun Saxena and Another v. Union of India and Others.
“The State Government shall take necessary steps in this regard forthwith. Till the framing of such a comprehensive scheme or making amendments to the existing scheme as stated above, the NALSA Scheme, 2018 shall act as a guideline to the Special Court to award compensation to child victims of sexual offences under the POCSO Act as directed in Nipun Saxena (supra),” the judgment stated.
The High Court was considering a petition filed by the Kerala State Legal Service Authority and Alappuzha District Legal Service Authority.
The two authorities (petitioners) had challenged a Special Court order directing them to grant compensation of ₹ 50,000 each to two child survivors of sexual harassment.
The Court noted that both the petitioners were statutory authorities entrusted with the power to give compensation as per the Victim Compensation Scheme under Section 357A of the Code of Criminal Procedure (CrPC) and Section 33(8) of the POCSO Act.
The petitioners, however, argued that sexual harassment is not included as an injury in the schedule of the Kerala Victim Compensation Scheme. As such, it was contended that the District Legal Service Authority was not legally liable to comply with orders of the Special Court.
The High Court, in turn, opined that Section 357A of CrPC has to be interpreted in a liberal manner and in the survivor’s favor if any ambiguity is found. Similarly, the Court noted that the Kerala Victim Compensation Scheme should also be interpreted to benefit the survivors since it is a beneficial scheme.
“While interpreting a provision brought in as a remedial measure, that too, as a means of welfare for the victims of crimes, the court must always interpret the words in such a manner that the relief contemplated by the provision is secured and not denied to the class intended to be benefitted,” the High Court said.
The Court ultimately concluded that “sexual assault” under one of the Schedules to the Kerala Victim Compensation Scheme would include “sexual harassment”, even if minor victims of “sexual assault” under the POCSO Act were expressly excluded by the Chapter II of the Scheme.
“According to Webster’s Dictionary, the word ‘sexual assault’ means the crime of touching someone in an unwanted sexual way. Thus, the term ‘sexual assault’ found in either of the Schedules of the Scheme has to be construed as any sexual offence against a victim, including sexual harassment,” the Court reasoned.
Therefore, it rejected the contention that “sexual harassment” under Section 2(j) read with Section 11 of the POCSO Act was not included as an injury covered by Schedule I of the Victim Compensation Scheme.
Hence, the High Court held that the State Legal Services Authority or District Legal Services Authority cannot deny compensation to child survivors of sexual harassment cases.
The petition filed by the authorities was, therefore, dismissed.
The Court also directed that a copy of the judgment be sent to the Chief Secretary of the Kerala government.
The Kerala State Legal Service Authority and District Legal Service Authority were represented by advocates Roshen D Alexander, Tina Alex Thomas, Harimohan, and Kochurani James.
The State Government was represented by Public Prosecutor advocate P Narayanan.
The Court was assisted by Amicus Curiae KK Dheerendrakrishnan.
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