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POCSO: Age Of Consent?

According to the National Crime Records Bureau (NCRB) data from 2021, 51,863 cases were reported under the POCSO Act, of which many are still pending. The purpose of POCSO is novel and vivid- to protect children of our country from all sexual abuse, or any possibility of sexual abuse. It is an important act, especially today when crimes against children are increasing.

Need Of POCSO ?
Crime against children is not a new occurrence. They had been happening since way before and were punished under Indian penal code. But the code had its own set of lacunaes
  1. Section 354- outraging the modesty of a WOMAN. this woman centric section kept Children out of preview. In a supreme court judgment, where a small girl was sexually harassed by her uncle, court gave the ruling that she was too small to have any modesty. of course, the ruling was heavily critiqued by many. And men are expressly excluded. In reality, all have modesty. And have a right to protect it under article 21 of the constitution.
  2. Section 375 - RAPE- dealt with woman only. No male was covered.
  3. Section 377- now is unconstitutional, otherwise earlier it was the section that punished any penetrative sexual act with a male child. But again, PENETRATIon is the essential. Otherwise, the act of harassment would go unpunished.
Hence, clearly need for POCSO was there.

Today's Context
Recently, in various courts the matter relating to reducing the age of consensual physical relation is under deliberation. The Karnataka high court- had received the case where a minor couple had with consent entered into physical relation but parents filed complaint against the minor boy. Similarly, in Delhi high court- a minor-major couple faced the same consequence.

So what should be done ? Should the age of consensual sex be reduced? Or should it remain same?
Well, the matter went to consideration - and several judges have expressed their opinion. Our CJI D.Y. Chandrachud, is very clear with his opinion that he favours reducing the age. But, Justice Ritu Raj in the 22nd law commission report- clearly stated that age should not be reduced as it is against the government's decision of increasing the marriage age.

While the reasoning behind Ritu Raj ji's decision is not very clear to me, I still support her opinion that yes, AGE SHOULD NOT BE REDUCED, but for different reasons:
  1. Simple, reducing the age means reduced accountability on the part of citizens- such that they will end up engaging more in such sexual activities. This will directly result into increased cases of child pregnancies given the fact how little sex education is imparted in our country.
  2. The stigma attached with child pregnancies is well known - what will happen to the girl ? ofcourse, she would not be taken to good doctors in proper hospitals, but to some desi quacks- this might result in increased cases of child pregnancies death.
  3. There is a need to understand that a girl develops throughout her teenage. Any sexual activity has a potential to cause her bodily harm. Thus, it is a duty to protect her.

So what is the position of male/ boys in such situation?
  1. KARNATAKA HIGH COURT - here, the couple is minor. Both of them need same level of protection and care from the society and law. So yes, no case should be made against him. law protects all.
  2. Now Lets consider the Delhi high court's example - the guy was 23 years old male. A MAJOR. Yet he entered into sexual relationship with a minor. So despite the fact that the girl had consented to it, it was his duty to not go further with it ( ignorance of law is no excuse afterall ). but even if he was not aware of law, it is well understood that she is minor and her body is not ready for such relationship. Also girls are usually gullible at this age, and don't understand the real right and wrong and are mainly driven by impulse. So yes, her partner- He needs to be hold accountable- because he ignored his duty to protect her. EVERY MAJOR HAS A DUTY TO PROTECT MINOR- WHATEVER BE THE RELATIONSHIP. ( same goes if the minor is boy and major is a woman - then woman should be punished )

Alternatives Solutions?
  1. Add exception in the POCSO act
    1. As already said in minor-major relationship- major should be held accountable and must undergo so some level of community service atleast, if not punishment
    2. In minor couple cases - no punishment should be given, and both should be protected by all means.
  2. Awareness - impart sex education properly to all - so they understand their body more properly and act accordingly. A law for the same should come- or can be included in national education policy.

Reducing age for consensual sex is something that is more appropriate in countries like US. But in India, we are way more different that their country in terms of society, and also in terms of ethics and culture.

Earlier people used to wait till marriage before establishing any such relation, in today's era least we can do is wait till we attain full physical development ( for a good reason )

Any action of reducing age before complete awareness will result into problems in society. So lets avoid them !

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