 to take the pattern of introducing and then Thank you. Thank you so much, Vikas. My dear friend, Justice Roshan Dalvi, Sri Vikas and all the participants, learned participants, it is a great pleasure as we have seen last week in detail the provisions of the POSCO Act as to how comprehensive and well intended it is. It fills up the lecuna in law and creates the mechanism for making the investigation and trial process child friendly. We have to remember that however we are I mean the law legislation may be even the best one. It is not sufficient unless it is implemented in its propering. The law after all is a dead letter. The life is infused in it by those who operate it especially in a socio-legal legislation like the POSCO Act. When we are dealing with the most vulnerable class of society, the children of tender age and those who are subjected to the most genius of all the crimes that is sexual abuse, it is of utmost importance that the stakeholders in the system, maybe the investigating officer, maybe the police officer or the judicial officers deal with them with sensitivity. And this importance of the sensitivity has been emphasized by the apex court from time to time to tell the way back in the case of Bogan by Haridwara which was in the year 1983, thereafter in the case of state of Punjab versus Burmese Singh of 1996, then of 2009, Nipun Saxena versus Union of India and the latest decision of Aparna Bhatt versus state of Madhya Pradesh which was of 18th March 2021. In all these cases, the Supreme Court has emphasized on the sensitivity because according to Supreme Court and everyone will also agree that without the sensitivity on the part of the stakeholders, especially the judicial officers, the advocates and the police officers who directly come into contact with the child, there is every likelihood of justice becoming a casualty on account of technicalities. I mean, there is very wonderful quotation of Justice Krishna here in the case of Prishan Lal versus state of Haryana that was in the year 1980, year 1980 Supreme Court 1252 wherein he has said that it is the sensitivity on the part of the police officer or judicial officer which is a far better statutory armour against the gender outrage or offences against the child or the woman than the long clauses of the section with all protection written to it. So my friends, it is the sensitivity which hits a paramount significance and in this session we are really dealing with that part of it because it is the sensitive handling of these cases which will prevent the child victim from being the subject of secondary victimization or adding armour which he has already undergone. Here it is also important to remember that a judge has not only to be sensitive but innovative also in its approach and its approach is should be totally justice oriented and I'm really happy and glad and privileged to share with you all that today's our key speaker Justice Roshan Dalvi is one of such rare judicial officer who keeps on innovating and she has I'm happy to share again that she has adopted all the child friendly techniques in her handling of these cases in front before the POSCO Act came into effect and therefore it is very important to know how she had implemented these provisions which ultimately found place in the POSCO Act. So like all of you I am also eager to hear you, hear you Roshan and therefore this is a I mean instead of taking more time I would really hand over the mic to you so that you can enlighten all of us and I must say that I am also eager to learn from you. Thank you Roshan and hand over to you, over to you. Thank you Salini, you're very kind and hello friends, good evening. Now you see today we are going to deal with the subject of the most fragile and tender population of our country, our children. Satyati has said justice for every child. Now he means justice in the entire country but we are under the portals of justice temple and therefore we are most governed by this phrase justice for every child. Somehow people feel that justice comes only from the judge, it is not so. In many cases which require sensitivity it is required of everyone. Only if a judge is sensitive but the other stakeholders are not, she or he can do very little and when we talk of other stakeholders we do talk of the police, the prosecutors, the medical officers and the judicial officers. Now medical officers of course to a very little extent because they come into the picture only on one day but all of these people but I would say that this sensitivity must extend also to the lawyers. You don't become any less a lawyer because you are not sensitive to the needs of a child before you. We all have children and we all know how our children are growing up but there are millions of children who are not so lucky, who are not so fortunate to grow up within the protection of the family, the extended family, the outside resources like the schools etc and there are a lot of crimes perpetrated upon these children. Now I will assume that you are not a prosecutor but a defense counsel and even then the sensitivity which is required is of two parts. One is to be sensitive and one is to empathize. That means if I was in that position what would have happened to me? What would I have expected? What would I have done? These two things sensitivity and empathy I would call centipathy. It's a portmanteau. It's not in the dictionary but it's not a slang word either. So this centipathy which is required is of everyone and why only lawyers even the court staff for example our punes, our cherished state, our legal officers even if they are insensitive to the child it hurts. They cannot speak anything. It is like prevention of cruelty to animals because why? They cannot speak. They cannot shout like you and me but we have to keep in mind that these are God's children, our country's children and in fact why even our country's children, the world's children because we can work without boundaries. There are doctors without boundaries. You can have our system for children without boundaries. I have seen children's cases in England, in Canada and I've seen how differently they have been treated. One judge sat at an angle and took the child in his lap while the evidence was being recorded. Was he any lesser judge? Was he prejudiced against anyone? No. He wanted to treat a child as a child and not the child only as an adult witness. There lies the nobility. Nobody at all raised any eyebrows or any objections to the judge's venture. Of course that was the case of a drug cartel and a child was sort of involved in that and therefore he treated the child with the protection that the child deserved. Now of course a lot of things have been done under the Sexual Offences Act which came into UK from 1976 and under the Victims of Crime Act in America and now we have adopted that after the Palermo Conference into our POC soap. So I will share with you my presentation which is on this theme and I would say treat a child as a child. Today while I am giving this lecture if a child walks into one of our rooms what would we do? If we are in one room and all of us together what would we do? I would stop giving the lecture. You would stop hearing me and you would just talk to the child and say, is that some breach of protocol? Is that that we are prejudiced against anyone? No. That is the decorum required for a child and of course we are not going to do that in the court but something like that we can do which I have done and I think all can do and of course Shalini also has done a lot of all those and I will be giving you some examples of how those things matter and how if you don't do that also it tells on the hurt and trauma of the child. So if you give me a minute I'll share my presentation with you. Can you see my presentation? So as we first enumerate the crimes against children what we see is okay. So these are the various crimes which are perpetrated against children. Now that you see we have got these crimes right from at least 1860 as crimes against society which are against our children also in the IPC okay and you will be knowing out the crimes in respect of marriages, in respect of miscarriages which is abortion and they are now under various other acts also and there are numerous such crimes and I've tried to keep everyone inside okay. Now under POXO we have specified crimes that is the sexual assault, aggravated sexual assault, penetrative sexual assault, aggravated penetrative sexual assault, sexual harassment and pornography okay. So this is what you know but so far as the cases that come up before us are concerned what we know is the two tests that we must always apply in our minds and this first test is a test of lesser numbers greater attention. What do we have? We have a lot of children at certain times and places and they don't get the requisite care and protection. These are neglected children. Now if you see at home there may be a home with one child then maybe a home with eight children and the care and protection is completely different even automatically. It is very good to say that our mother loves all the children but she cannot devote her time to all the children. These are the children who are vulnerable children. They are the real targets of sexual offenders and those sexual offenders may be in any of those crimes that we have seen including child trafficking. They may traffic the child and take them away. Now if there is just one child essentially, essentially if there are two children they are better cared. Otherwise what happens is the houses are small, the children are one too many. The mother says they are outside, they are pride upon, they are taken into other people's homes or huts or whatever and then they are sexually molested. That was one such case before me which and how I conducted that trial I will be telling you presently. In schools it is the same thing if there is a municipal school with 130 students in a class the teacher cannot give the same kind of attention that the teacher can give when she has 28 children in a class and the student-teacher ratio is much better. Similarly in countries in the countries of Asia, Africa etc where there is a lot of population there are more vulnerable children. It is not that in other countries the children are not vulnerable but they are more vulnerable. The degree is more and of course just like in our courts if the courts are packed to capacity with work then naturally the judge cannot take care of all the matters. So when such a matter comes up before us as lawyer or as judge or as police officer or prosecutor we must feel what is wrong there. Is this a case of lesser numbers greater attention or greater numbers lesser attention? Has this child got lesser attention so that the child has become a victim in this case? That is the first thing that must come to us. The second test is the test of the three hours which was given by the Boy Scouts of America many many years ago and that is to recognize that there is this problem okay. Now we generally tend to feel that oh this problem never exists here it never happens in my backyard it never happens in my house and my family and my society in my country we are wrong it happens in all the societies and in all the countries because some of the other vulnerable children are everywhere neglected children are everywhere okay. Now they may be poor children or they may be rich children rich children generally are pried upon by their family members by their drivers cooks any of those kind of things. Poor children are pried upon by their family members traffickers transporters all of those kind of things because they are sold or they are abandoned okay. The second hour is resist the child must resist at every child understands a good touch from a bad touch so when the child says gee oh no it must be respected of course the trafficker or the attacker is not going to respect that but if the child somebody has got into to the child and the child reports to the mother or the father quite often they say oh aisa bulte hai kya aisa nahi bolne ka ye to apne chacha ji hai you know that way so the child feels betrayed the child doesn't have trust the child cannot speak to anyone and this chacha ji knows that he will be able to do better and better at every time when he gains access to that child so we must understand that the child must resist and teach the child to resist that is an awareness program and of course you can't do it when cases come to court those are the case children without which the society has failed and therefore they come to our courts but before that that is done if they cannot resist and therefore we must think that this is a child who unfortunately could not resist that sexual assault okay and report we must report every crime and more so we must report crimes against children and now under sections 1920 there is a specific legislative mandate that if you know that something is happening you must report so if you know that there is this thing happening in your family you report in in somebody else's family you report because then at least another child will not be similarly assaulted or abused so therefore we have these partners in our system who are the there are two partnerships one is of parents teachers friends and NGOs or the counselors okay so these are for awareness creation for the victims needs before a child becomes a victim of that kind of an attack we as parents teachers must understand this is the problem watch out for it accept the child's speaking be in such a position that the child can confide in us okay now if these people have failed because everywhere sometimes there is failure then the case happens because an offense is committed and then come the police officers medical officers legal officers and judicial officers and of course now under our system also the criminal justice agencies which we call NGOs now they require an attitudinal change not only that I am appearing for this man therefore I will do everything only for this man forget the tribe not only that I am a police officer I am in command and therefore I will berate the tribe not only that I am a medical officer I have no time so I will tell the child that child is still I below not that way and legal officers would be both prosecutors and the defense counsel the responsibility obligation and duties that we have to the child is not whether we are appearing for the state or against the state but it is that we are appearing in the matter of a child to bring the truth before the court and of course if there is no truth as a defense counsel you bring that before the court and I will be sharing with you one of my cases where there was no truth in a child's statement and how that came to be then of course judicial officers that is judges who primarily are on the top of the ladder and therefore they really are the captains of the court and therefore they can always have a sway over the case that they conduct if they conduct it with all sorts of decorum as well as firmness the criminal justice agencies are the agencies that work within and outside the court system now we have the guardian at literm or the NGOs or whatever by whatever name called under our fox so there is child representation that representation is by a lawyer or by an NGO who is generally a lawyer also by at least profession so they can then mold the court proceedings to show the court what the child has suffered and how that must be to achieve the state goals now what are the objects of this partnership the two partnerships bring about a culture change in the society as well as in the courts now there must be several men who will feel very very strongly about child sexual offense in fact we are told that even prisoners even convicts in jails they feel that a convict of a child sexual offense is different from other convicts they themselves then violate sexually violate such a offender so therefore they are also they also require the separate protection under the prison reforms act and therefore you know men talking to men makes a lot of difference and men also must feel the same way it is not only because we take women and children on one side even under our constitution that only women must be sensitized and it is not so many men are far more sensitized than many women so we have my wow that is men against violence against women that is a that is an organization they they abhor this kind of violence and the second the USA we have the vava act violence against women act so this women is women and children of course because she is under 18 she is a child now these anti-violence messages can be brought out by the government by say the church or the temples or anything like that by community groups which are NGOs and at workplaces also where there is sexual harassment and those kind of offenders come along so now we go to the legal provisions actually first are the international covenants they are one too many i've taken out the most important for us the initial one the universal declaration of human rights specifically speaks of rights of the child the covenant for the rights of the child itself under under clauses 17 18 etc specifically say how children must be protected against sexual or other onslaught convention for elimination of all kinds of discrimination against women is thought to be only against women but even a woman of 15 years for example is a child and therefore she would have to be protected as a child under that government and similarly covenants against torture and cruel treatment especially when there are conflicts armed conflicts and wars there women and children are the worst sufferers because they don't only come to them as enemies but they come to them for sexual assault then the international covenant on civil and political rights which otherwise we would feel is nothing has got causes for children and the Palermo protocol is the main thing which brought into effect ultimately our epoxo now there are those national legal provisions in our country we have the IPC from 186 350 years before our constitution and under the IPC though women and children are not separately treated and it is a kind of a unigender law but there are provisions for women and children and that is right from say female I told you all of those offenses right from female fetus site infanticide femicide and in between the infanticide and femicide you will have incest sexual assault outraging modesty and then sexual harassment pornography abortions miscarriages offenses relating to marriage etc okay so all of these were there and as much as trafficking and slavery was in our IPC then came our constitution it granted special status to women and children under article 153 and therefore there are now various laws specifically made under article 153 okay so the immoral traffic prevention act from 1956 that we have the bonded labor act that is for children in labor they are also assaulted the domestic violence act which of course applies to women then child labor prohibition act which applies to child labor FOXO act is the one they are dealing with essentially which we deal with with juvenile justice act where a child is in need of care and protection as well as the delinquent child who is on the wrong side of the law and one state goa has got a separate goa children's act now all of these legislations international and national call out these rights for the children we fail to understand this when it when it comes to court cases we only deal with one law the IPC and FOXO but all of these rights are right against exploitation now for example in the constitution which gives fundamental rights there are two prohibitions only two prohibitions and they are in the chapter on fundamental rights one is the prohibition against untouchability we are not dealing with that today but there may be untouchable children they are not untouchables they are horizons can't you call them children of god and the second exploitation is the exploitation against trafficking which we are very much concerned with in this lecture and in these kind of matters of FOXO or ITPA which come to court because under article 23 there is a right not to be trafficked because human trafficking is a prohibition under our constitution this human trafficking is prohibited okay so this applies to children as well as of course adults in some few cases they apply to girl children as well as boy children so we know that there is a right against exploitation there is a right to information to the child the right of representation and hearing which is now given even under FOXO specifically the right to assistance which means protection and assistance of NGOs and other court officials the right to privacy and confidentiality which is now in our IPC in our FOXO JJAC everywhere protection and safety is against the whoever is the offender then of course the right to speedy trial which is or they're right in the constitution the right of rehabilitation and in some cases when they come from other countries like for example Nepal Bhutan Bangladesh whatever repatriation is the right of the child so ultimately so far as judges are concerned when we pass the ultimate orders we have to seek and think about the child's rehabilitation and repatriation if the child was trafficked and has no parents or anything then the right to compensation now of course every single case every single criminal case from 2013 10 years ago about the justice Thakur's judgment in Ankush Shivaji Gayakwar versus state of Maharashtra says you must consider the compensation that means even if you are not going to grant compensation even if it can't be given you must consider that aspect and say now there can be no compensation not that it is always followed it is not the right against forceful deportation that happens to children who have been trafficked who cannot really speak and they have been trafficked from other countries and they are forcefully deported now if you are going to work without boundaries if you are going to have sensitivity for every child that we come across then even this deportation cannot be forceful if you have to see where the child can be now protected and then deport the child then the right to sue for traffickers through the traffickers for compensation that is an additional right against traffickers who are very well off parties now in our sensitization for this law substantially what we consider is the impact of that offense which has been committed on the child I would give these as the most important impacts if you can read it but there are many more so the psychology is impacted and destroyed it diversifies life it leaves a bitter shock the child is disgusted there is disbelief suspicion helplessness frustration anxiety loss of security the feelings of guilt unfortunately so wrongly it is that the child herself or himself feels the guilt it is so wrong but it is there fear of disclosure how will they do it and the confusion that comes in our justice system and that leads to what what we call re-victimization so when we are dealing with our children in as a child witness as a child victim witness whichever way we must know that there is really re-victimization now this victimization is for police investigation but now under the POXO these sections give specified rights under sections 24 and 25 of POXO there is a specific way of investigation which police officers are now constrained and enjoined to do there is a Mahila and Sishu desk in every police station or at least it must be and then there is the 164 statement which is recorded so that is an added provision for but when if not done sensitively it results in secondary victimization or re-victimization then after the investigation is done the modicum of investigation then the child's medical report has to be obtained so the child is sent to the hospital and the medical examiner the doctor will have to examine the child not many have the time not many are sensitive not many are attending this lecture and therefore that there is re-victimization even there the test which should not be taken with the supreme court has said with the united nations has said the two finger test is continued to be taken history has to be written down and therefore they ask the child instead of asking whoever comes with the child because the child is the patient and there is re-victimization this is dealt with under section 27 of POXO and under 164 of IPC then of course the most important re-victimization which goes on from day to day minute to minute minute and year to year because for three four years the matter doesn't reach is the court trial and the child is re-victimized in one case it was said that this daughter that was the case after nirbhai and that was taken to be the other daughter of India she was re-victimized by the law players or lawyers she was asked for re-examination and all that until the supreme court said nothing more so now what is the substance of this act that is meant to be under its objects the substance is that there is a dilemma for the child two big dilemmas one is the child versus adult syndrome every one is an adult in our court our court works with the adult at the centre stage but we require to have a child friendly atmosphere under our legislation do we understand what that is so that child friendly atmosphere is that we treat the child not as an adult but as a child as we treat any other child so we treat that witness or victim a little differently not that we are going to only convict in that case because there is a child we don't in most cases we acquit i will tell you of a case where i have acquitted honorably not even on benefit of doubt because that case failed but after giving the child all that was due to her i'll tell you about that victim versus accused syndrome is the other syndrome in the court one side there is a victim on the other side there is an accused the accused has got all the rights he is entitled to all the rights and he has got all the rights we have come of age and the articles 21 and 22 of our constitution we have given all the rights to the accused which is what it should be but that doesn't mean that to pander to the accused we forget the victim that is the point we are making and therefore there are these things which have come about in the western countries many many decades ago and now in our poxel so victim representation and i would say all lawyers should rejoice actually there should be representation for all victims of all nature even in a murder trial or a decoyty trial why should the victim not be represented the victim is the complainant or the complainant's heir or whatever that is and is very much interested in bringing the accused to justice and therefore there should be representation and if the representation is there lawyers will have doubled the number of work that they are having today because now lawyers are appearing only for the defense and there are a few prosecutors only for the state you can have a prosecutor for the state and accused a lawyer for the defense and a lawyer for the victim but at least for children under poxel taking from the Palermo conference taking from the sexual sexual offenses act and the victims of crime act we have got under section 40 representation for the victim it may be an NGO cum lawyer it may be a lawyer it may be both there can be two people representing the victim then there is victim support now section 33 speaks of all the various things in the trial but 36 and 37 are what the what contact the the victim must have and what contact she must not have so contact with the prosecutor is very important the prosecutor is going to ask questions to the victim and every time wherever there is going to be cross examination or examination there is a conference with the lawyer so why should a child not confer with the person who is going to ask the child questions there is nothing like you are going to brainwash the child or indoctrinate the child but the more important thing is no contact with the accused and how that can be is a matter for that substance you know of sensitivity then victim protection as under section 37 various things that you have to do and victim participation which is actually not even in our so yet but another victims of crime act in America what they say is the victims right to the victims right to speak the nation's responsibility to listen it's such a it's such a telling phrase which is the object of that act that we all must listen to the children they may have to say many things and this right is given at four stages the stage of bail or remand then the stage where the trial begins the stage of decision and ultimately the stage of whatever is the rehabilitation or anything we will deal with those four stages also presently but now we are coming to a stage where the reason offence committed now how do you treat a victim and an accused the accused of course has to be arrested he will be interrogated by the police then thereafter the police will apply for remand and the accused will apply for bail generally in cases of trafficking and sexual offense it is not prudent to just enlarge the accused on bail because he may go out and do this in the same child he may do it to other children this offence is very prone to repetition he will also intimidate that child so it is very prone to intimidation it is if it is a traffic trafficking case then it is against the fundamental rights of the child and quite often there is violence because you can't take the child by consent and very happily and therefore the child is physically sexually violated now if these four aspects are there should judges grant bail the answer is simple no but if in some cases bail is granted it must be on stringent conditions that at least that child is not brought into contact with that accused now the victim the victim especially a victim of trafficking a victim even of one sexual offence once committed used to be rescued from that system from that position of society and then she must be interviewed by the councillors or even he is a child must be interviewed by the councillors now this takes a long time and councillors are very sensitive people unlike lawyers and judges so they they know that on the first day the child is not going to say anything it will take too long and again and again repetitive sessions and various carrot and stick policy etc etc for the child to open up even for the age quite often children are indoctrinated they are extremely traumatized I showed you that impact on children and then from the interview you can call out now today we have the CWC and the CWC requires the same kind of centipetry because all of those victim children are brought up before the CWC and they will have to see what has gone wrong with them now we have the kinds of these victims also children you know verified minors they are definitely below 18 years quite often they feel this girl is about 14 years old and she says she is 19 years old because she feels that she will be let off or any such thing or if she is trafficked then those traffickers have inculcated in her mind indoctrinated her to say 19 so that at least they have not committed offenses against children some are possible minors they might or might not be minor prima facie they may seem minor but we have to find out the court will have to find out the defense council as well as the prosecutor must show the court the relevant evidence some are verified majors they are above 18 years they are not children they are not minors and therefore they will proceed in the usual legal system now for the proof of age of specially responsible minors what happens the first is the birth certificate the birth certificate is a public document it is it has got a presumption of its correctness it can be just standard across the bar and can be accepted but the school living certificate is a private document of course now the school living certificate is accepted under our laws but it has to be proved as a private document especially if the judge feels that this girl is or this boy is a minor but the accused insists that he is a major and brings this school living school living certificate how will that be proved the headmaster who admits who gives admission to the school maintains a register the certificate is a private document there is no presumption of its correctness that private document has to be corroborated with a substantive private document which is the register and the register will show all the entries so if there are any entries which are not found or if they are interpolated we know that this certificate which is a school living certificate is false and obtained falsely that is very important to consider for whoever is appearing for the child or representing the child and of course the medical opinion the ossiverse test etc which comes later and there is a margin of error now with all of these things also in our justice system we have got certain road blocks one is the number of cases all the cases which are not reported there is nothing we can do in our criminal justice system we have to report we have to report but they don't report the number of cases are not pursued even after they are reported there is just no evidence brought the victim doesn't come other things don't come the Mudne Mal is not brought there is little that a judge can do then there are some child witnesses who are tutored and this is where I would like to share my experience with you I had a case of incest she was a 16 year old girl and I was really agitated that it was a case of incest the father was in custody he was working in Dubai he was of course taken in custody when he was low he used to come for his holidays he was estranged with his wife his wife was living in that same locality he had three children all the children were going to the husband's house and the wife's house intermittently anyhow it was something like a row house there was something down and something on the mezzanine floor the children and the father used to sleep on the mezzanine floor and the the drawing room kitchen whatever was down now this child because it was a case of incest I said I will have this in my chamber I called the prosecutor the defense council I put the child in the center I told her this is the last time she will be telling me the story etc etc I told the accused to come sit behind the child and I started hearing her case when she wept so I realized my god got trauma it has been so many years even then she is recalling all that evidence this is secondary victimization then came the cross examination and very nicely politely simply the advocate was doing the cross examination which is not quite often the case and the point that they were making was that this case has is false because the child has been brought as a kind of a pawn by the mother who is estranged in the meantime the husband had remarried he had a younger wife the immediately the case was filed he was arrested and he could not go back to Dubai his wife was living there three years had passed from the time the mother was estranged and the children were always with the father and going to the mother also and the father was sleeping with the children nothing was happening there was no such case and he said that I was maintaining my child also and he showed me the bank statements of telegraphic transfers that were made from Dubai and then he showed me the marriage certificate the Nikanama and he said and the lawyer asked me the question that for three years he didn't do anything with this trial why will he do that after he gets another wife and I came to learn from the entire evidence that this child was tutored the case was false and I acquitted him on it so this was a defense lawyer having a good case behaving well as I told him coming to my chamber sitting down cross examining as I told him I was referring to shakshi and gurmit Singh and all of those cases this was of course well before poxom and I was the sessions judge and I acquitted him so you can always bring the truth before the court now some witnesses turn hostile and there also there is a substantive law the judge made law even if the child is turned hostile it doesn't mean you throw away the entire evidence you take that part of the evidence which is okay and then you take the rest of the evidence put it together and make up a whole picture now this also happened in my court once the child was assaulted the child said he came he did this etc he pained me etc and then she completely stopped she was she couldn't she didn't cry and she didn't speak and she could not go ahead okay they said she is turned hostile but the neighbor came and gave evidence that when this child was taken in the room the child was screaming it was in the next hurt hut I was living in that hut and I and other neighbors went and banged on the door and the accused opened the door and he was in his undergarments and the child was crying now put two and two together the child could not say only that much is there any law which says that you cannot take this evidence as a whole we always read the document as a whole we have to read also the evidence as a whole and not only the evidence of one witness but of many witnesses if that is required and that is how we can take care sensitively about a hostile witness not all cases of course come up that way but whenever they do then some cases are doctored just the way I told you that there may be disputes of property etc and a child is put up like that and that can always be seen by documentary evidence there is no need not to treat a child kindly but there is need to see the document and then do justice as per what the document might say and of course sometimes there is conducive investigation the police will cite the offender or the trafficker because he's corrupted and not bring things to light I will tell you one case of trafficking which is not by me it wasn't in Calcutta and I was told that it was a trafficking case after many years the child was summoned she was taken to the court and she was shown an old woman and that old woman came to her and told her so they were just wondering what is she saying the NGO who went with the child and the child said who is she the child said she was a cook in our brothel so they were wondering why she came but she happened to be and they did not know because papers are not given to the complainant and that is an insensitive approach in as a justice system also they came to they were shocked to your see that this old woman was the only accused the child narrated the entire story of how she was trafficked how she was rescued how this NGO has been protecting the child and providing for the child and then when she had to identify the accused she naturally said that she is not the person so she was acquitted and the case was closed but a sensitive judge would further say make further investigation and find out who is this accused who has not been brought before the court of course after many years it is very much it is even more impossible to get that accused but you can't just close the file if you are a sensitive judge and if you are a sensitive prosecutor you have to say proceed there's a provision under the criminal under the evidence act also 319 etc and you find out and show that this investigation was conducive so this is how we have to see the objects of boxer what is the objects the object is to prevent inducement to engage in unlawful activity now this unlawful activity is unlawful physical or sexual activity so all of these offenses that we are talking about exploitation for prostitution and sexual practices so everything is covered in that the sexual maybe infanticide maybe feety side is not really coming within the provisions of boxer so if you take it in an extended weight that also would be and of course exploitation for pornography which is quite different and cyber offenses now so when we have got please keep in mind that the objects are these the object of boxer is not to harass every single child who falls in love who goes with a boyfriend who lives with a boy or any of those there is an offense of course called statutory rape under 376 of our IPC that is there it has done a lot of damage it has done more harm than good but I do not see how those cases can ever come under boxer because when you are living together for example the girl and the boy run away it is not an unlawful activity at all they are living in one room it is not an unlawful activity only if they have sexual intercourse then it becomes an unlawful activity under 376 and unless that is proved the actual act is proved the act of going away is not so you can't say that because they were they were together there is definitely rape only that has to be proved and if the woman or the child says yes in the court then it will become an offense under boxer if at all because she is under 18 all these offenses would not come there and strangely you will find that all of these cases are say 363 and 376 along with boxer so the child is kidnapped taken away by the accused now who is this accused that accused is also a young boy he is a young man he will be going to college he will be going to work he is not an offender he is not going to do this to anybody else he is just having an affair with a child which we look down upon because our society has not matured sorry our law has not matured as much as our society has today 14 year old 12 year old children go and live together for a couple of months they say no we want to and there is consent we don't say that rape is only sexual activity without consent that is our problem and therefore all these boxer courts are bringing to the capacity with those kind of cases and the real cases of sexual offenses like prostitution like sexual practices sexual assaults rape etc do not get priority now if those cases go away from poxso then all of the other real poxso cases would get priority and we will deal with what is priority and what is that also and how that substantive law must be sensitively considered a little later now under the features reporting reporting is a mandate it was always there it was understood but now under section 19 and 20 if you come across you have to report now if suppose a boy and a girl are staying together and you come to know of it can you report that offense i would say no there is no unlawful activity there is no exploitation for prostitution or any of the sexual offenses we don't know about what is happening we can't presume anything so there is to my mind no need to report no need to report but suppose you come across a case where a child has been screaming and nobody is listening you go and you report that offense your duty bound to report if a doctor comes across a case for example under pcp and dt act that this is a child she is now pregnant she wants to have her fetus aborted it cannot be done under section 29 others could be arrested only the child need not be arrested etc but it is an offense must she report yes she must report because then she will protect that fetus also some doctors have got this dilemma under the medical code they have to maintain confidence they this confidentiality would extend to any case of any crime also but under poxo they have to report now when will they report if a person comes and says my daughter has been kidnapped by somebody else you report that crime no the doctor need not but if somebody comes and says that oh she has been sexually violated please check her she will be having to report that crime to the police and then the police will tell her to make a medical report in the case after it is done so that is how i would read it sensitive then a false complaint of course like i told you in my case if there is a false complaint then that is prohibited and therefore there will be a separate this thing i think it's a six months investigation procedure and trial procedure are laid down i've you have dealt with that learned this is joshi has dealt with that last time these are all towards sensitivity and there are two presumptions and mind you this is not conviction this is not conclusive evidence this is only presumption as to the offense and as to mensia so therefore it is a rebuttable presumption and it can be rebutted the way it was done in the case which i told you so then you find no there is no mensia but when a child gives a statement in court she has prosecuted that offense she comes to court and gives her story that's it thereafter the court has to presume yes the child has said that it must have happened and then if the accused rebuts it fine if the accused doesn't rebut it there would be conviction now for this there is this requirement of the criminal justice system infrastructure interpretation and sensitivity infrastructure costs a lot weak as a as a country is somewhere in between the west has got a lot of infrastructure many of the african and other isian countries have much less than what we have so what is this infrastructure which is required we may or may not have it exactly as the west has it victim support centers now in the west these are like three star hotels as soon as an offense is committed against a child or a woman she is taken to a victim support center she is there for 15 days one month as long as she wants to be the police will come and record her statement the audio recording or video recording is done it is sealed and given to her and the police keeps one for the defense council there is no evidence in chief then there is cross-examination only on this and in the center the medical examination takes place if she has got trauma she gets counseling help etc we have shishu desks now the shishu desks have to be manned by sensitive police officers and if that is done they work with NGOs there are all sorts of dedicated NGOs in our many many cities especially in my city and they render human service in trafficking cases in sexual abuse cases we have to take their support quite often they take the child if they take the child the child is fully supported then victim examination suites so when she is examined and that is not by the court by the police officer there can be those suites now we have got at least the magistrates examination and that must be done sensitively we don't have these suites separately but video recording of statements and video recording of evidence becomes different if there is video recording and now especially thanks to covid when we have got all these sorts of webinars we can always have these kinds of things recording on video where the child's trauma could be minimized so that is the infrastructure the interpretation is the interpretation of the act and the interpretation of the judgments how best the judgments can be interpreted but sensitivity is the most important thing it is on a zero budget that we have it and that is i would put it in two parts caught climate and courtroom contract so these stages which require sensitivity are these three stages the stage of bail we must understand that once a bail is lost everything is lost the accused can abscond many of the traffickers brothel owners brothel keepers are absconding and we don't get them so at the time of bail the hearing must be of the victim the accused and the state the victim under poxo will be represented by the NGO or and or her lawyer accused and the state of course then at the stage of evidence which is divided into two parts recording of evidence as per section 33 i don't have to go into it because that is done last week and appreciation of evidence again which is the latent evidence that we must appreciate now there is a lot of unnecessary minor omissions which we don't have to take into account then there will be so much of not scandalous class examination but class examination which is which turns out to be irrelevant what is the color of that bars what is the color of this room etc etc how big was it wherever you place all of those things the appreciation also must be with sensitivity the child who is under trauma of a very heinous offense has to depose as to what happened when that offense took place even our adults cannot do that i used to have an exercise with the judges when i used to have physical hearings and my workshops and i used to show them a picture and i used to turn the picture from left to right in my class and then ask them questions many questions were wrong many questions were right and i used to tell them that you see you are not a child you are not under any trauma i have shown you the picture just two minutes ago you are professionals even then some answers are wrong one judge had told me madam i will not ever forget your shock treatment so this is how the sensitivity has to be so important and that becomes the substance of this kind of legislation for recording and appreciation of evidence and of course if we come to the conclusion that there is no offense created the acquit it's fine okay but if there is a conviction then sentencing must be proper fine must be enough fine plus compensation is now required compensation by the government let us say under the Manu Darya's team as in Maharashtra and other states compensation even from the trafficker or the accused the accused is in a sound position and rehabilitation if the child comes with the parents there's no question but if the child doesn't have parents if she was neglected if he was neglected it's a case of pedophilia then rehabilitation is a must now the judicial conduct the sensitivity courtroom climate court climate and courtroom conduct special courts special courts which are ITPA courts and poxo courts special courts necessarily not but substantively meant by women who will understand to whom the child can speak more effortlessly more comfortably this is under section 28 priority in disposal now if a court takes up all the cases then the court can prioritize like when I took up those cases I prioritized because I was taking so many different types of cases of adults also but if there is a poxo case and then if you have to prioritize how would you prioritize those generally judges take up those case of 363 376 because they are small cases and they can get their dispersals now that is not a sensitive practice but you can prioritize and find out that oh this is a case which I think from the reading of the chart sheet that there is a real sexual offense there is trafficking there is sexual abuse there is a gravitated penetrative sexual abuse whatever prioritize that put it on board and nobody can or should say no if an advocate is always allowed to appear for the defense but he is not allowed to and he should not delay the proceedings and take needless adjournments so priority has to be maintained but not in the case of statutory rape put them aside and you see that then there will be fewer cases which require priority and those cases are the ones which require the greatest justice to be done to them so then for those cases the judge must give fixed dates and fixed time the schools are of half days so children can come in the afternoon session or in the morning session but that case must be on that day and it must be taken up and essentially finished okay then there is a fixed period now under section 35 we have got 30 days and nobody records everything in 30 days child statement only is required to be recorded and if you are going to prioritize your matters then at least for those real sexual offenses those things can definitely be done within 30 days and nobody can take objection and those cases which are statutory rape cases where you find that there is a 17 year old girl living with a 20 year old boy and she wants to get married and she's just wanting to delay it and she becomes 18 and she can get married let her get married don't prioritize that matter don't appear and even the lawyers can contribute if they are sensitive they can say that there is this kind of a matter please let us take it that way okay so all can be sensitive then there is contact with court officials court some NGOs bring the child to court before the evidence has to be recorded just before to just show what is the court proceedings this is a very sound practice there is no law which bars it so you know that they know that there are those kind of there's so much of crowd then there is this court there somebody is shouting oh they may shout at me also see this is the prosecutor he's going to ask me questions this is the court official and the child gets some kind of security then of course there should be no contact with the accused so then it must be seen that a child when the child when the when the matter is kept specially for the evidence is kept at a particular time on a particular day the court officials know take the child quietly keep the child in one corner so that the accused can not be brought before the child and then of course the court will take over so then there is courtroom conduct and we say this must be a child-friendly atmosphere how do we have a child friendly atmosphere it's very important to know how so we record evidence now we say evidence and camera what is evidence and camera you please open the dictionary and then open a law dictionary and you will find in black slot dictionary and in other dictionaries a in camera is a place within a focus place like a chamber so now judges chambers are the real in camera trials i was told by one of the judges that ma'am when we said that i'll i'll hold the trial in chambers the advocate started shouting that no the law says in camera it doesn't say in chambers you cannot do that it is illegal i said next time you tell the lawyer please open the dictionary and see the meaning now no one somehow has understood the true meaning of in camera trial we describe in camera trial as a trial in which all the redundant people are thrown out of the court the court door is closed and one case goes on i am sorry that is completely wrong it is said by any court even of the supreme court it is completely wrong and i will tell you why now when i gave you that impact and the fear that is for the child the impact that disbelieve the the helplessness etc and more so the fear please understand whom will the child fear the most i would have liked you to respond to me but there is no time so i will only tell you naturally the child will fear the accused the most the child will also fear the lawyer of the accused the child may feel will fear the judge who is sitting right on top there the child will fear the police before whom the statement has been recorded and god knows what he has told the child the child will also fear the prosecutor because he is going to now ask questions the way the police had asked him questions and the child will fear perhaps the court officials will the child fear a bystander no if the child is left all alone the child feels i am the only one year and all these are the people whom i fear because in an in-camera trial you will have the accused the lawyer of the accused the judge the prosecutor the court officials the police that's all so the child feels completely alone and lonely that is not the purpose of an in-camera trial and that is not why even the supreme god must say hold that in-camera trial now let us take our position to understand and to have empathy with the child for that centipity we are going on an empty barren road in the middle of the night wearing if we are a woman or necklace if we are a man a Rolex watch because we have come out of a wedding somebody is there we feel and we fear there is a robber will we fear this when there are many many people walking with us no we fear this because we are alone that robber may overpower us that is the fear that the child has and that must be assuaged and therefore we must have child friendly atmosphere by an in-camera trial which must be held in a focused place like a chamber all right now i will tell you how i held the camera in-camera trial in a chamber and not in my court and this was in about 2001 23 somewhere like that when poxo was not in the making when we were still discussing and arguing about the fact that the poxo must come into our system so there was a case of child sexual abuse i was appalled at when i read the papers i decided to hold it in the chamber i told my court staff who was very very excellent staff i had luckily and only because of that like jessie jessie zamana i said he did everything because of teamwork i did everything also because of teamwork i was only the captain of my team and my team worked very well so i decided i told them we are going to do this for that child on that day now i've given that date and time see they said yes they got the computer in my chamber my steno was going to come on that computer i told my sheriff that i will come in the afternoon because that's when the child could come and i will call out you call out the matter and as soon as you call out the matter and the appearances are taken i will come back to my chamber don't tell this to anyone take care of the child in the meantime see that she does not see the accused that's all this is a yes man will do that i went to the court they gave the appearances they were ready i had made i had made it very very clear i said yes please come to my chamber we will record the evidence and i got up and i walked out i did not wait for opposition and attacks and all of those things i said let them do that in my chamber if i call i had told her send the girl and immediately after one minute or two minutes send both of the advocates as usually i kept everything in my chamber the computer was to my right three chairs here one chair to the left one stool behind and of course some other place for my other stuff no as soon as i went i disrupt i took out my band and gown i sat on my chair which was on the same level as the child i hardly did this the child came in all i did was i took out my hand and i told her beta in the meantime both the lawyers came the prosecutor and the defense lawyer i told him sit here sit here so they were flanking the child i called the mother of the child whose evidence was already recorded because she was the complainer i made her sit on my left side then i called the accused and i had told my pune call him quietly take it let him sit right behind the child so he was brought in and he came and he sat down i had told my pune you be at the door and the policeman also must be at the door when i want the muddemal it has to be given and they were all at attention and my steno was already there and i told both the lawyers i said she is right next to you please ask questions very softly quietly okay there is no need to shout because she is a child please remember we have children and our children don't grow up like this child if at all this is correct and i told the prosecutor i don't want the identification first i want it last somehow in bombay they do the identification in paragraph one i don't know why it should come in paragraph last of the evidence in chief that all this happened and this is the man who did it or woman who did it anyway so this procedure some raising of tempo i said i will call off the cross examination which i was of course not going to do but i had to keep them in under control and i said otherwise i will i will ask her you i'd ask me in english etc etc i took from um kumit singh and saab she and i extended it further and everything and the evidence went on she gave me the evidence and then she had to identify so i said okay tell me who did this because that's what the prosecutor asked she is telling me auntie he had his right of hearing he had his right of understanding he heard the trial he saw the trial this girl had the right to be heard she was heard now she became completely ashen she was white and she waited for one minute just then i was seeing her back sort of and she turned the face and she did not say anything so i thought that she will not tell me and i i was just resigning in my mind that i will say that i've seen her demeanor and her demeanor shows that this person was the accused because her case was his identification and that time she pointed her thumb towards herself you know in a fist and she's telling me auntie so i took down that way and i said now you cross examine and he started asking various questions several of them i said no intimidating questions no scandalous questions no irrelevant questions but of course several irrelevant questions i allowed because i knew there was nothing else to ask otherwise so it went on it went on till quite late in the evening but it went on peacefully and they advocated us various things and we finished the cross examination and i told her see i promised you know that you will tell me last time now you don't ever have to come to court so she said thank you auntie and she went now this was trial in camera now we have got video recordings also and now it is growing so it's so simple so cheap so we can do that that way also one judge had kept the child in between the accused in between two cupboards so that the child cannot see the accused in the courtroom i think that was a very sound thing a very new thing somehow we have got now some rules that that should not be done i don't know why but this was a good thing to do but if you have only a curtain where the accused is sitting that is completely frivolous because the child knows that the accused is right behind the curtain if you have a one-way mirror like they have in england then it's okay because the child doesn't know only we know that there is a one-way mirror and the accused can hear the trial see the trial but the but the victim cannot see the accused so this is how we have the atmosphere the courtroom conduct then there is a specific place for all so as i told you i gave you all the specific places the child can easily see her mother that is the steno is on my side i don't look at the steno i kept on looking at the child and they accused him all the time so the accused did not misbehave he could have misbehave we could have made some sound or something and the child may have felt anything but that didn't happen luckily in that so that was a specific place for all including for the policeman who must be at the door and not near the child then no intimidating questions that we find then recording of evidence by the court so if there is anything now of course everything can be recorded by the court because it is underpoxing but otherwise also if there was any time when the court felt that this is intimidating upon any witness the court can always say you tell me english i will tell her in the one killer period and rest time and breaks which comes from our from our judgment law also and now under section 33 so this all together makes the substantive sensitive child friendly law for the children and therefore i would say hear those who cannot shout listen to those who cannot speak that is just this and we would have children like this they are like your children and my children but everybody's children should be like that thank you white spectrum of the law what you all thought would have been ma'am just stop the screen sharing yes i will stop is it is it stopped now yeah yeah okay can you see me yeah yeah okay this is this is one of the situations he says mr kekirao transportation of girls for trafficking boys for child labour for the countries what is the way to stop that well that is a social issue not a legal issue see everyone is a is a trafficker there are various people who work together one is the transporter so that is the person who really takes the child and brings the child into the brothel or anywhere else you know we cannot stop anyone to conduct the business we do not know whether when he is going to conduct the business it is going to be sort of offensive under our criminal law or not but we can have our children in such a way that they may not be taken away by the transporters how do we do that one is we have fewer children whom we can take care of i would say the population explosion is really the greatest problem that way you know and especially popular family science population explosion within the family where the children are neglected children are poor there is poverty there is unemployment no like our education no opportunity employment opportunities then children are taken away by those transporters we cannot have a lot don't take the children away because you say i'm not taking the children away so we have to work law and society goes together i'm writing a book now on this aspect and on the various gender perspectives which come up in law and in society and how they can be mingled together merged together we only have this question and what you are saying is kindly share the notes i will ask ma'am and ma'am has a lot of people kind enough to share the notes yes yes sure sure take it i'll give it i'll send it to you yes so before we end for the day today i will ask charlie ma'am to have her a flip or how does she conclude with that of the today's part two part one part two so it was a quite encouraging for the mind to have different perspectives what do you ma'am thank you vikas and it was really an excellent presentation justice roshan and that is what the commentant chat box is saying the really this is the law which requires sensitive implementation application and operation otherwise the law is not going to have any help and that is where we require the judges like justice roshan dalvi who is as i told you in the previous introduction itself has always adopted the innovative ways of making the justice real for the victims otherwise it is merely a pursuit of justice and that is really made up from you know achievable because of the ways she had found out even before the act came into effect so it was really in that way and i hope her or something you know which we want all of all the judges to really implement these methods these are very substantive justice as she has the quotation of pela satyarthi justice for every child how to achieve it and that is the way she has shown it and i'm really thankful to her for that i'm also thankful to vikas for making this platform available for the two sessions on the subject of justice to child and especially in the light of the posko act so thank you to everyone and thanks to the participants also who have actively you know got engaged in the entire interaction and discussion on this importance for every child for every parent for every citizen and for every future citizen and so so thanks to everyone thank you thank you thank you everyone for joining us and because of your participation the resource questions we can always bring because we come to know what type of sessions have taken we would ask perhaps to take sessions on our procedural law so that people can understand on more in detail in some of the subjects i will link them later on and thank you to all those who have connected with us everyone stay safe stay blessed namaskar thank you namaskar thank you