The Protection of Children from Sexual Offences (POCSO) Act, 2012, has been in the news recently due to concerns about age of consent among adolescents. This issue peaked when the Chief Justice of India urged Parliament to address the concerns surrounding this critical matter. The High Courts of Madras, Delhi, and Meghalaya have raised alarm over the criminalisation of romantic relationships involving adolescents under POCSO. This has fueled an ongoing debate about the validity of using punitive measures against minors involved in consent-based relationships.
In response, the government announced in December 2022 that there are no plans to revise the age of consent.
Key Features of the POCSO Act, 2012
The POCSO Act defines a child as any individual under the age of eighteen years, prioritising their wellbeing at every stage to ensure healthy physical, emotional, intellectual and social development. It categorises various forms of sexual abuse across penetrative and non-penetrative assault, sexual harassment and pornography.
In cases where the abused child is mentally ill or when the abuse occurs from a trusted figure like a family member, police officer, teacher or doctor, the act considers the sexual assault as “aggravated”. The Act also assigns the role of child protectors to police during the investigation process. The Act mandates disposal of child sexual abuse cases within one year from the date it is reported.
Understanding the Age of Consent Within the Act
Under the POCSO Act, all sexual acts, regardless of consent, involving individuals under the age of 18, are considered criminal offences. This presumption is based on the understanding that individuals below 18 lack the legal capacity to give consent.
Concerns Surrounding the Age of Consent Under the Act
The legislation has been critiqued for conflating exploitative sexual practices with general sexual expression by adolescents. Consequently, the law ends up penalising non-exploitative consensual relationships involving minor girls. The law essentially desexualises minors, downplaying the possibility of their active participation in sexual activities.
Moreover, the law often comes across as detached from social realities. For instance, data from the National Family Health Survey-5 highlights that 39% women had their first sexual encounter before turning 18. The report further revealed that 45% of unmarried adolescent girls between the ages of 15-19 use contraception, signalling active sexual engagement.
Government’s Role: Protection or Prosecution?
Recent amendments in criminal law in Uttar Pradesh, which denies anticipatory bail to those accused in rape and POCSO cases, adds further complexity to the issue. The state appears to adopt a two-pronged approach – acting as the guardian of children against sexual offences, while paradoxically prosecuting youth in consensual relationships.
Implications on Judicial System and Victims’ Privacy
The alarming increase in the number of juveniles apprehended under the POCSO Act has placed an immense burden on the already overworked courts. As per the National Crime Records Bureau’s ‘Crime in India 2021’ report, there was a 180% surge in such cases between 2017 and 2021. Additionally, laws like POCSO impair the privacy and liberty of the ‘consenting’ girl and further hamper awareness about sexual health among young girls.
Judicial Interventions: Drawing the Line
Several judicial interventions have attempted to rectify the Act’s perceived shortcomings. One such example is the Madras High Court ruling in Vijayalakshmi v State (2021), which urged the demarcation between acts that should or shouldn’t fall under this stringent law. The Delhi High Court has also granted bail in cases resulting in marriage or where the age difference between the victim and offender was small.
A Possible Way Forward
Addressing these issues calls for prompt action, including revising the POCSO Act, promoting comprehensive sexual education, improving data collection, and providing proper training to investigating officers on handling POCSO cases. It is crucial to strike a balance between protecting children from exploitation and respecting their burgeoning autonomy and individuality.
