Why an FIR has named the Badlapur school in alleged sexual assault case against two minors

The FIR was registered only on August 16, and the accused was arrested on August 17.

The Bombay High Court, which took suo motu cognizance of news reports, noted that a perusal of the FIR shows that the school authorities were aware of the incident but had failed to report it to police.

Based on these facts, police added Section 21 of the POCSO Act in the FIR against school authorities for failing to report the alleged sexual assault.

The Act and Section

The POCSO Act was enacted as a special legislation to address incidents of sexual abuse of children. The Act enhanced the scope of what constitutes abuse beyond the provisions available under criminal law, which was the same for adults and children. In its language and in the substance of its provisions, the Act gives the well-being of the child paramount importance at every stage.

The Act has a section on the procedure for reporting of cases. Anyone who has an apprehension that an offence has been committed against a child is required to provide information to the Special Juvenile Police Unit or the local police.

Section 21(1) states that “any person who fails to report the commission of an offence” or who “fails to record such offence…shall be punished with imprisonment of either description which may extend to six months or with fine or with both”.

Section 21(2) prescribes a punishment of up to one year in jail, with fine, for “any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence…in respect of a subordinate under his control”.

It is a bailable offence.

Debate over provision

In many instances, children face abuse by persons known to them, in domestic spaces, their schools, or neighbourhoods. In many cases, children may be unable to protect themselves or to inform anyone if a close family member is involved, and the abuse may continue unnoticed. The Act, therefore, makes it obligatory for anyone who has an apprehension that a child is being abused, to report the matter to the authorities.

During the discussion on the mandatory reporting provision, child rights activists had expressed concern that it could lead to hesitation among parents and children about seeking medical assistance or counselling, fearing stigma. The Report of the Standing Committee on the POCSO Bill in 2011 had suggested that mandatory reporting could be confined to designated authorities such as a child care custodian. The Act, however, retained the provision and the punishment.

This provision has been invoked in the past against in-charges of educational institutions or parents who failed to report sexual abuse by a family member. Many court orders have taken a stern view of the failure to report such offences.

In 2022, an issue regarding the balance between mandatory reporting under the POCSO Act and the confidentiality provision under the Medical Termination of Pregnancy Act, 1971, (MTP Act) came up before the Supreme Court.

The court said that for the limited purposes of medical termination of pregnancy under the MTP Act, the registered medical practitioner, only on the request of the minor and guardians, can be exempt from disclosing the minor’s identity and personal details.