Abstract
POCSO Act stands for the Protection of Children from Sexual Offences Act, enacted in 2012 to protect children from sexual offences during their formative years. However, deviating from its original purpose, the Act has increasingly been weaponized by disapproving parents of girl children against their teenage lovers. These young couples are entangled within the strict provisions of POCSO when their relationships go beyond platonic limits, since the consent of minors is immaterial in the eyes of the law.
The Act raised the age of valid consent to 18 years, making adolescent males vulnerable to charges of sexual abuse, even if the sexual act was consensual. After more than a decade of implementation, various limitations have emerged, such as disregard for the maturity of the consenting party, neglect of the tender adolescent phase and western cultural influences, and double standards in determining the age of adolescents.
Although the Supreme Court and the Central Government currently have no plans to reduce the age of consent, cases involving romantic relationships should at least be treated with less severity than heinous cases of sexual abuse.
Pocso Act: Introduction
POCSO is the acronym for the Protection of Children from Sexual Offences Act, enforced by the Central Government of India on 14th November 2012. This Act was designed to comprehensively address sexual offences faced by children during their early years, when they lack the maturity to understand or consent to such acts.
Before the enactment of this Act, sexual offences against children were handled under the Indian Penal Code, 1860, which did not recognize sexual offences against male children and had other limitations in addressing child sexual abuse. Therefore, in the absence of specific statutory legislation protecting child victims of sexual abuse, the Ministry of Women and Child Development passed the POCSO Act.
It is one of the most stringent Acts in the country, providing harsh punishments for offenders. The POCSO Act, as amended in 2019, is gender-neutral and protects both girls and boys who fall within the definition of a child under the Act.
The POCSO Act serves as both a substantive law, prescribing punishments for sexual offences against children, and a procedural law, laying down the processes for handling such cases.
The Act broadly classifies sexual offences into three categories: Sexual Assault, Sexual Harassment, and Child Pornography. It prescribes punishments accordingly, based on the severity of the offence.
Variation of Age of Consent by Pocso Act
Section 2(1)(d) of the POCSO Act defines a ‘child’ as a person who has not attained the age of 18 years. The law recognizes that children, being naive and lacking mental maturity, cannot give valid consent to any sexual activity. Consequently, the Act sets the age of consent at 18 years.
Prior to POCSO, the age of consent under the Indian Penal Code was 16 years. Thus, POCSO raised the age of consent from 16 to 18 years.
In the case of Jarnail Singh vs. State of Haryana, the Hon’ble Supreme Court observed that the age of a child victim should be determined in the same manner as a child in conflict with the law. Accordingly, the age of minors under POCSO is determined by Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which provides an objective method to ascertain age.
This method does not consider the mental development, capacity, or maturity of the minor to comprehend the acts they consent to.
Consensual Young Affairs And Pocso Act
With more than a decade of the enforcement of the POCSO Act, certain lacunas of the said act about the functioning and enforcement of the provisions of the act has come to surface. The right to choose one’s life partner under Article 21 has been repeatedly guaranteed by the Hon’ble Supreme Court in various cases providing the right to choose one’s partner for life and relationships, but the reality of the socio-cultural fabric of India still entrusts a greater role to the adult family members to make life decisions of a youngster.
As a result, there lies a strong condemnation within the family of adolescents regarding their teenage relationships which motivates the teenagers to run away with their lovers rendering them within the legal and criminal landscape of the country. The POCSO Act further endangers such young lovers by prohibiting any kind of sexual activity between the minor partners.
The POCSO Act was made with the objective to protect children and especially the girl child from sexual abuse. But over the years, this Act has turned into a weapon within the hands of the families of the minor girls having a romantic relationship to exploit the other partner of the relationship and his family through various ways, such as money extortion, malicious judicial proceedings, or social disrespect and to criminalize the teenage romantic relationships.
For example, a 17-year-old girl X and an 18-year-old boy Y are in a romantic relationship with each other and they both consent to establish a sexual relationship, their consent is immaterial in the eyes of the law whether they possess the maturity to understand the act and its consequences in which they participated or not. If due to any reason (maybe, pressure from the parents of the minor girl), X files an F.I.R. against Y, it would be almost impossible for Y to escape the shackles created by the POCSO Act and his whole life and career might ruin because of a mistake made in a tender age where one might not understand what is good or bad for oneself and the stigma of rapist would remain with him within the society for his lifetime.
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Disregard to the Mental Age of the Consenting Party
POCSO restricts itself merely with an objective determination of the age of the victim to determine the offence, without considering the mental development and maturity possessed by one to comprehend one’s acts and its repercussions. It is highly probable that a minor person might have developed the mental capacity to give a mindful consent whereas a major person even though attaining the valid age to consent might not have sufficient maturity to consent for one’s act.
Therefore, merely setting a bar of 18 years to determine valid consent in order to convict an accused to such stringent punishments without giving a tinge of subjective consideration to the mental levels of the consenting party and the facts and circumstances of the case is an unbalanced approach to determine the guilt of the accused.
A girl with an age of 17 years and 364 days would qualify as a child even though her mental capacity would not be any different from a person one day older i.e. 18 years of age who would not qualify as a child. Therefore, mere grammatical interpretation of a statute without considering the practical realities would not serve the purpose of the Act and what is required is to assess the mental development of the child to be capable enough to give a valid consent.
In the case of Shri. John Franklin Shylla Vs. State of Meghalaya & Anr., the Meghalaya High Court held that a person of 16 years of age is mentally developed and mature enough to make conscious and informed decisions regarding his/her well-being and decisions regarding sexual intercourse as well. Therefore, there lies an imminent necessity to align our laws as per the contemporary scenario which is particularly more important in case of stringent Acts like POCSO.
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Unification of the Consensual Age and the Marital Age
The POCSO Act has unified the age of consent with that of the legal age of marriage, i.e., 18 years. The age of consent must be distinguished from the age of marriage because sexual intercourse does not happen within the confines of marriage only. Moreover, both the youngsters indulge in the sexual intercourse whereas only the boy has to suffer from the accusations of rape whereas the girl had engaged in the same act.
But it is a matter of utmost concern that marriage is not a pre-condition for the acts of sexual intercourse. With the changing social scenario and the influx of Western thoughts like Live-In Relationships, etc. in our contemporary Indian culture, the concepts of consensual sexual relationships have been finding their place in the mentality of our youth population. The POCSO Act has provided the minor girls a remedy which is often misused by them to serve purposes other than that of justice.
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Stigmatization of Youth for Life
POCSO which was formed for the purpose of securing constructive protection to children against sexual abuse has deviated from the purpose of its enactment and has rendered the young men and boys having loving relationships with minor girls into convicts of sexual offences and young women into the victims of sexual abuse.
The social stigma of rapist gets deep-rooted into the atmosphere around and within the boy although there was no rape on his part and the sexual act was completely consensual. The personal and professional lives of such youngsters get completely wrecked because of a mistake committed during such tender age of life.
Such critical stigmatization of the young populace due to an innocent mistake on their part can even encourage the youth to take harsh actions against themselves or being behind the bars could turn them into hard-core criminals beyond reform.
POCSO was enacted with the laudable object of protection of children against heinous sexual offences but even this enactment must have got certain genuine exception areas to demarcate the line between the innocuous consensual sexual intercourse and sexual assault, because in the absence of any such exceptions, often the harshest provisions of the act are slapped against the youth which leads to irreversible damage to their reputation and career.
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Neglect of the Adolescent Phase of Biological Attraction
The adolescence phase of one’s life is a very tender age and biological attraction towards any person if not inevitable, is quite common. Puberty and the period thereafter create a lot of hormonal changes within the individual giving rise to sexual feelings and attraction towards any person of the other or same gender.
Therefore, punishment to one of the sexes (male) for consensual sexual actions where there was no force involved does not serve the ends of justice. Therefore, there lies an urgent necessity that we align our laws with the present scenario and mentality of our young population. Mistakes made in the early years of life out of innocence and physical attraction and hormonal changes in the body should not let the reputation and career of a man to be scarred for life.
It becomes very difficult to define a relationship when the girl is under the age of 18 years, in her final year of school or early year of college and the boy is just above 18 although the relationship is out of innocence and biological attraction because such a relationship invites the stringent provisions of the law when it crosses the platonic limits irrespective of involving consent on the part of both the parties.
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Overburdening the Existing Burdened Legal System with False Cases of Sexual Abuse
The POCSO Act was made with the aim to curb sexual abuse against children but it is founding itself more as a weapon to criminalize adolescent love. It was never the intention of the Legislature to punish the young lovers. But since the act does not recognize consensual sexual activity by minors, even these acts are viewed from the same legislative lens which imposes severe punishment on sexual offenders.
As a result, a large number of false F.I.R.s of sexual offences of minors are filed where no actual sexual abuse was actually involved, thus overburdening the already burdened police department and judiciary. According to the reports of the Vidhi Centre for Legal Policy and Enfold Protective Health Trust, in 48.66% cases, the accused were either friends or romantic companions of the victim which is indicative of the large number of false cases filed under the act.
These false cases are generally filed by the parents of the minor girl having a consensual relationship, who are critically against the romantic affairs of their daughters. A large number of cases registered under POCSO are on the basis of the complaints filed by the disapproving parents and family members of the teenagers having a loving relationship but the scheme of the act does not intend to bring within its ambit cases of teenagers having romantic relationships.
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Double Standards in Determination of Age of Adolescents
In the Indian criminal system, with the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2015, a child can be tried as an adult in cases involving serious offences. Section 15 read with Section 18(3) of the above-mentioned act provides that a minor above the age of 16 years of age in cases of heinous offences can be tried as adults.
This decision to treat the minor accused as adult is taken by the Juvenile Justice Board after conducting a preliminary assessment of the physical and mental abilities to commit the alleged offence and the capabilities to understand the consequences of the same. In such assessment, assistance is taken from the experts of the fields of psychology and sociology.
This provision introduced by the Juvenile Justice Act exposes the double standards of the Indian criminal system. On one hand, there lies an exception to treat teenagers as adults in the cases of heinous offences but on the other hand, when it comes to consensual romantic relationships there lies no provision for the determination of maturity and ability of a minor to provide a valid consent who consented for a sexual activity.
Similar to the provision of treatment of adolescents as adults in the cases of heinous offences, a proper framework and assessment facility must be established to determine the maturity levels of a minor in a romantic affair who consented for the sexual act.
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Unaligned with the Global Age of Consent
The Age of Consent varies from country to country in the Global scenario. Each country has fixed the minimum age to provide a valid consent for sexual act after taking into consideration their socio-cultural, historical, and economic development. Most of the countries provide 14-16 to be a minimum age to consent for sexual activity and falling below that would amount to statutory rape.
Although the age of consent varies from country to country based on their respective socio-cultural environment but with the increasingly globalized and connected world, where cultural exchange can take place between countries with so ease, there lies a need to rethink about our legal system’s age of consent. With the greater influx of western culture in our society and the cultural amalgamation among nations, there lies a need to lower the age of consent.
In addition to the cultural influx, there lies a huge difference in the age of consent of about 2-4 years between India and most of the countries which is one of the chief reasons for false POCSO cases before the Police and the Judiciary brought generally by the disapproving parents.
Central Government’s View of the Problem
The central government’s perspective on applying POCSO provisions to boys involved in consensual romantic relationships was outlined in Report No. 283 of the 22nd Law Commission. The report concluded that it was inadvisable to change the existing age of consent as set by the POCSO Act. The main reason for this position was that changing the age could be catastrophic by excluding girls above 16 years from legal protection.
Although the report rejected altering the age of consent, it acknowledged that consensual romantic relationships should not be treated on the same level as heinous cases of sexual abuse. Cases involving tacit approval by children aged 16-18 do not amount to legal consent, but such instances should be dealt with less severely than typical POCSO cases. Hence, judicial discretion should be exercised to ensure justice and safeguard the best interests of the child.
Supreme Court’s View of the Problem
The Supreme Court of India addressed the issue of applying POCSO provisions to consensual romantic relationships in a Suo Moto writ petition titled In Re: Right to Privacy of Adolescents. The Court, through Justices Abhay Oka and Ujjal Bhuyan, directed strict enforcement of the POCSO Act and Juvenile Justice Act to protect minors properly.
The Apex Court stated that POCSO does not recognize any category for consensual romantic relationships under its offences or exceptions. Courts are required to apply the law as it stands. It is irrelevant whether the minor girl consented to the sexual act, as her consent holds no legal value. Therefore, courts must implement the law strictly and provide appropriate protection to victims of sexual offences.
Suggestions
Viewing consensual romantic relationships through the same legislative microscope within the POCSO Act has led to adolescent boys being subjected to the rigors of the POCSO. The only remedy available to the accused in such cases is the quashing of F.I.R.s by the High Court under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, which depends on factors such as the prosecutrix turning hostile, etc.
Such a remedy is not very easy to avail for the accused as the law stands totally against the accused for the act committed by both the accused and the prosecutrix. Therefore, there lies a need to bring about some amendments to correct the existing exploitative situations faced by young couples. Some of the steps that can be introduced to remedy such a situation may be:
- The age of consent may be lowered to 16 from 18 because generally it is believed that a 16-year-old is aware and mature enough to take decisions considering his own welfare and even regarding sexual relationships.
- It is very difficult to define a relationship when the girl is below the age of 18 years, although such relationships are out of innocence and biological attraction. If such affairs go beyond platonic limits, these assume a penal character by subjecting the boy to the rigors of the POCSO. In consideration of the ground realities and to reduce such unfortunate instances, there lies a need to amend the age of a child within POCSO to 16 years.
- A provision may be made where the stringent provisions of POCSO would apply when there lies a huge age difference between the victim and the accused, because such a difference would totally negate any chance of a love affair between them.
- Procedures to ascertain the maturity of a person should be applied, and the focus should be on determining the mental age of a person — whether the person could provide valid consent or not.
Therefore, these are some of the steps to filter out the large number of false cases filed before the Police and the Courts and to protect the dignity and life of such adolescents who get entangled within the shackles of the POCSO in the name of minor love affairs.
Conclusion
The POCSO Act was enacted with the purpose to safeguard children and minors from sexual abuse. But over time, it has been witnessed that a large proportion of cases under POCSO are reported where the girl child was within the 16-18 years age group and was in a consensual sexual relationship, making it almost impossible for the boy to escape the fetters of the stringent POCSO Act. Such cases are misleading the object for which the POCSO Act was enacted.
There lies an urgent necessity on the part of the Legislature and the Judiciary to take certain steps in this regard because acts done in one’s adolescence out of ignorance, innocence, and biological attraction should not amount to rape and sexual assault. Such a conviction of a young boy would scar his career and life and stigmatize him as a rapist for the rest of his life. Such convictions would have immense social, psychological, and economic repercussions on him and his family.
However, the Supreme Court and the Central Government are not in favor of reducing the age of consent. Therefore, in consideration of the high number of false cases of sexual abuse under POCSO, it is the need of the hour that the laws are aligned with the global consensual age and the progressive mental attitude and psychology regarding romantic relationships of our adolescent population.
