The Gauhati high court has questioned the applicability of the Protection of Children from Sexual Offences (Pocso) Act in cases lodged during the Assam government’s crackdown against child marriages, and cautioned that the state’s use of power can play “havoc with personal lives” of people.
While granting anticipatory bail to nine people who approached the court, justice Suman Shyam observed that the Pocso cases were registered without any complaint of rape or sexual assault.
Responding to an argument by the state’s counsel that these are serious matters, justice Shyam said, “What is the Pocso here? Merely because Pocso is added, does it mean judges will not see what is there? We are not acquitting anyone here. No one is preventing you to probe.”
The judge added in the order that if a marriage is taking place in violation of the law, the law will take its own course. “These cases have been happening since time. We will only consider if immediate custodial interrogation is required or not. At this moment, this court thinks that these are not matters for custodial interrogation. We will ask them to appear and record their statements. These are not NDPS, smuggling, stolen property cases,” the order said.
The judge observed that custodial interrogation is not mandatory in such cases. “You (the state) proceed as per law, file a charge sheet; if they are convicted, then they are convicted. It is causing havoc in the private lives of people, there are children, there are family members, and old people,” he said.
The court granted anticipatory bail to the nine people from Bongaigaon, Morigaon, Nagaon and Kamrup districts. They were booked under the Prohibition of Child Marriage Act (PCMA) and Pocso during a drive in which action was taken against more than 3,000 people.
In another case, the same judge called lodging a case under Pocso “weird”, and asked if there was any allegation of rape. “Obviously, it (child marriage) is a bad idea. We will give our views but at the moment, the issue is whether they should all be arrested and put in jail,” the bench said, observing that there was anyway no space in jails in Assam and that the state government had to use a transit camp to accommodate those arrested.
On February 3, the Assam government began a statewide crackdown against child marriages following a cabinet decision. The government’s drive has faced protests in different parts of the state, especially from women, who have called the arrests of their husbands and other family members unjust, adding that it puts their own livelihoods at risk.
There was no immediate reaction available from the state government or the ruling BJP on the high court’s observation.
“Through the drive, Sarma is trying to divert focus from relevant issues like inflation,” Congress leader Debabrata Saikia said. Senior lawyers said in view of the high court’s remarks, more people who have been arrested are likely to get bail by the district courts.