Why POSCO provisions added in these cases and where is the need for custodial interrogation? Guwahati HC questions ‘crackdown on child marriages’ and grants anticipatory bail in several cases How lawful is the application of POCSO, IPC (Rape), and PCMA as the number of Muslim men being arrested and thrown into jails rises in Assam, Guwahati HC questions
16, Feb 2023 | Tanya Arora
While the ‘crackdown’ by the Assam police and largescale arrests, ostensibly to check the ‘evil of child marriage has been welcomed by glee and gloat(s), the Gauhati High Court on February 15 granted anticipatory bail to several accused in several different (bit related) matters where they have been booked under the Prohibition of Child Marriage Act, 2006 r/w the POCSO Act, while observing that these are not cases which require custodial interrogation. An overwhelming number of those targeted in the recent crackdown are Muslim males.
Strong oral Observations by the bench
As reported in media portals, beginning with LiveLaw, the bench of Justice Suman Shyam remarked verbally that if marriage occurs in contravention of the law, the law will and must take its own course. Such incidents (of contravention of emancipatory laws over retrograde social practices) have occurred throughout history. The Judge elaborated stating that the appropriate court(s) will assess whether or not immediate custodial interrogation is warranted. At present, he stressed, this court (the high court) believes that these are not matters for interrogation in custody, and the accused are simply required to appear and record their statements. The bench went on to say that these are not NDPS, smuggling, or stolen property matters where custodial interrogation may be warranted.
In response to this, when the counsel for the state of Assam argued that these are serious matters, Justice Suman Shyam remarked that the charge of POCSO can be added to anything. He enquired of the counsel for the state as to what the charge of POCSO was doing here in child marriage related cases? Reprimanding the state counsel, the bench added that merely because the charge of POCSO is added, does not mean judges will not see through what the motive of the charge. He also made it clear that the bench was not acquitting anyone here, and that no one is preventing the state from probing. Soon after this hearing, when another similar matter came up before the Court, the Court sought the view of an advocate sitting in the courtroom who agreed with the opinion of the bench.
The bench opined that “these are not matters for custodial interrogation. The state should proceed as per law, file a charge sheet; if they are convicted, then they will be convicted. This (state action) is causing havoc in the private lives of people, there are children, other family members and old people (affected)”.
Child marriage, according to Justice Shyam, is a dreadful concept, but said that the Court will weigh in when the time comes. The Court further stated that the main issue at this time is whether they (the accused) should be arrested and thrown in jail.
In another case with similar charges was heard by the Court, the bench asked the state why Section 376 IPC was added to the case. He inquired whether there was any rape accusation in the case that necessitated the addition of the aforementioned section. Justice Shyam reviewed the case record and remarked that “weird allegations” were made in the case. The accused was given anticipatory bail as a result of this.
Bail orders by the bench
Consequent to these oral remarks, on February 14, the bench of Justice Suman Shyam gave four anticipatory bail orders and one regular bail order. In the case of Lutfor Ali and 3 Ors vs. the state of Assam, registered under sections 9/10 of the Prohibition of Child Marriage Act, 2006, the four applicants had approached the Gauhati HC by filing applications seeking anticipatory bail, under Section 438 Cr.P.C. The bench allowed the four accused to go on pre-arrest bail on furnishing a bond of Rs. 20,000/- each with one local surety.
The judgement can be read here.
In another similar matter of Ashad Ali @ Asad Ali and 2 Ors vs. the state of Assam, who had been arrested under section 363/366/376(2)(n) IPC read with Section 6 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act, 2006, the three accused were granted anticipatory bail by the bench on furnishing a bond of Rs. 20,000/- each with one local surety each.
The judgement can be read here.
A similar order was also pronounced by the same bench in the case of Samsul Haque vs state of Assam, wherein the case was registered under Section 376(3) IPC read with Sections 9/10/11(1) of the Prohibition of Child Marriage Act, 2006, read with Section 6 of the POCSO Act, 2012. The bench has ordered for issuance of pre-arrest bail on furnishing a bond of Rs. 20,000/- with one local surety.
The judgement can be read here.
In all the above mentioned cases, those “accused” have been required by the bench to appear before the Investigating Officer within two weeks for recording his statement.
The bench also passed an order granting bail in the matter of Sajahan Ali @ Shahjahan Ali vs the State Of Assam, wherein a man had been in custody since February 4, 2023 with regards to a case registered under Sections 9/10/11 of the Prohibition of Child Marriage Act, 2006 read with Sections 6/17 of the POCSO Act, 2012. The counsel for the applicant submitted that as per the FIR, the marriage took place in the year 2021. However, none of the family members of the alleged victim girl has been arrested. He further submitted that the applicant is merely a Moulana in a Madrassa and not a Kazi or Sub-Kazi nor has he been named in the ejahar. In the said case, the bench observed that is no allegation has been made against the applicant in the FIR and that the allegation is basically against the husband and the family members. Thus, holding further custodial interrogation unnecessary in regards to the facts and circumstances of the case, the bench granted bail to the applicant on furnishing a bond of Rs. 20,000/- with one local surety.
The order can be read here.
Is the POCSO act applicable here?
Offences committed prior to November 14, 2012 cannot be covered under the POCSO Act, as retrospective application of the law, amended in 2019 (original Protection of Children from Sexual Offenses Act passed in 2012) has been struck down by the Supreme Court.
In 2019, the Protection of Children from Sexual Offenses Act of 2012 was amended. The penalty for sexual assault has been enhanced from a minimum of 20 years, extending up to the death penalty for the accused. The amendment included a provision for capital punishment. It was proposed by the government that the amended laws should be given retrospective effect even though they are prospective in character. Their stated objective behind the same was that such severe punishment would convey a message to society, and people would be less likely to commit crimes against minors.
However, the Supreme Court had struck down any retrospective application of the POCSO Act amendment by remarking that no retrospective effect can be provided when the punishment is to be administered prospectively and logically. To bolster its case, the court had cited Article 20(1) of the Indian Constitution, which aims to safeguard the interests of the individual, and prevent conviction and sentence under an ex post facto law. In other words, a person cannot be punished with a sentence more than what he would have been subjected to for an act done before the act was passed.
As a result, in the case of State of Telangana vs Polepaka Praveen, the Supreme Court had denied the state’s special leave petition seeking the death penalty to the accused. The Supreme Court refused to grant the death penalty to the defendant who had committed rape and murder of a nine-year-old child in Telangana just two months before Parliament amended the POCSO Act. The Supreme Court had held that retrospective effect to the statute cannot be granted.
Is this actually a ‘crackdown on child marriage’?
The Assam government justified its decision based on the National Family Health Survey (NHFS)- V report, which ironically did not position the state as the worst ‘offender’ in the child marriages index.
According to the NFHS-V, for the year 2019-21, 23.3% of women aged between 20-24 years, married before the age of 18. According to the survey, West Bengal, Bihar, and Tripura lead the state-wise list of child weddings, with more than 40% of women aged 20-24 marrying while they were under the age of 18. Six other states and union territories had higher rates than the national average, with two, Jharkhand and Assam, having rates higher than 30% (Assam reported 31.8%).
Besides, according to NFHS data, the national incidence of child marriage has decreased dramatically from 47% in 2005-06 to 27% in 2015-16. The declining trend was continuing in the most recent NFHS-V (2019-21), which revealed that nearly one in every five women, or 23.3%, married before the age of 18.
While it has previously been stated that the rate of child marriage in Assam remains higher than the national average, the manner in which this issue is being showcased and sensationalised to gain attention demonstrates that the Assam government is simply using this issue to further deprive the men of the Muslim community of their rights. Child marriage is not a community-specific tradition but is undoubtedly, often inter-twined with the bleak socio-economic reality in many locations, something which cannot be erased in a fortnight.
Incidentally it is not only Muslims who indulge in child marriage. The practice of child marriage is well-documented in Rajasthan during the Hindu festival of Akshay Tritiya. In response to this, in September 2021, the Rajasthan State Assembly had passed the bill to amend a 2009 Act [Rajasthan Compulsory Registration of Marriages Act] which provides for mandatory registration of marriages, including child marriage. Section 8 of this said amended bill had permitted that if the bride has not completed 18 years of age and/or the groom has not completed 21 years of age, then their parents or their guardians have the duty to submit the memorandum for registration of the marriage.
The Rajasthan Government had justified the said decision by stating that it is more essential to get the child marriages to be registered so that young children can be protected. Through this, they wanted to ensure that if someone is married off as a child, then, when they become adults and have children, and if there is property or legacy of the parents or grandparents, then there shouldn’t be an obstruction. In October, following an outcry that it would encourage child marriage, the Congress government in Rajasthan had decided to recall this piece of legislation.
This case in Assam is not about solving an age old social ill of child marriage but is a futile attempt targeting of Muslims corresponding with the elevated levels of an aggressive Hindutva sentiment and weaponisation of the state machinery. This has gone hand in hand with the alarming rise in recent years of social prejudice. As per the latest information provided by the Assam police, almost 2789 people have been arrested in relation to child marriage cases. There have been reports of women being driven to suicides due to this politically and religiously motivated “crackdown.”
While reading the eye catching headlines being published in the newspaper to disguise the real motives of the BJP-run government, it is important for one to ask themselves: who is this “crackdown” protecting? A law which cannot be implemented retrospectively along with the charges of rape are being alleged on the ones that have been arrested in this drive. It is predictable that a case in this matter will not stand in the court. Then why, in a country with high levels of pending of cases in the Supreme Court and the High Court, is this targeting of the minorities and the marginalized ongoing. When few can barely access law?
Unfortunately such blind-sides aggressive actions of the Assam government will, in all likelihood, further push such marriages undercover. When the wife in such a marriage finds herself pregnant, she may even be hesitant to approach hospital to get proper medical care. By these actions, the state government has just succeeded in making the situation worse by instilling fear in the minds of the women. Until now the Muslim community in Assam has been dealing with proving their citizenship, then protecting their homes, now they have to deal with actually protecting their males (husbands) from forcible state action –being confined in jails. For this to happen to sole breadwinners, this is a triple tragedy being unleashed on a beleaguered minority.
Conclusion
The POCSO law has been used (and misused) by government(s) repeatedly in recent times, to target communities according to religious profile. The ongoing debate of whether POCSO overrides personal laws or whether a judge can grant bail to accused on the condition to marry the victim, the POCSO act is serving a purpose other than the purpose it was implemented for. The Himanta Biswas Sarma government of Assam is treating the issue of child marriage as a socio-political strategy invented by fictitious anti- Islamic Jehadi sentiment which has gained acceptance in wider society. By driving the citizens of Assam into temporary jails, and a compliant media the woes of the community have just spiraled. This does not appear to be any genuine effort to curtail a social ill or get at its root cause.
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