The age of adolescence is an age where the sense of understanding and maturity both starts to develop but at a slow phase. Children forms an essential part of our society. In places where the youth percentage is more, it is said to be a developing or developed nation. India accounts for more than 40% of India’s population and 19%of the overall [1]World’s population. Not only does India accounts for the highest number of children, but also has the ultimate numbers of teenagers.
Considering the maximum number of teenagers, the rate of child abuse including any type of sexual assaults, mental or physical torture. Child Abuse can be known as sexually exploiting or molesting or any sexual activity which is either done forcefully or under any advantage grabbed by any adult or older adolescents to any child below the age of 18. It is easy to abuse or take advantage of a child because they are harmless and lack defensive- mechanism. This type of assault threatens not only emotional status of the child but also agonizes physical and psycho-social bearing on the child’s health and well-being. This situation has become a national concern which has also been addressed by various governments and governmental institutions, but there has been an implementation failure because of lack of awareness among the public. The term child abuse is mentioned because the child is unable to understand the situation as well as the consequences of the act, due to lack of being intellectually improvised for such act.
It is not only the abuser which is to be blamed for abusing the child, but other social factors such as lack of sexual education, their incapability of familiarizing to include sex-education in schools. Due to dearth of supervision in schools and obliviousness of their parents treating this topic as a taboo creates an awkward gap between the parents and the child. Even, the upsurge in technologies, influence of western cultures in every sphere of life- including movies involving explicit photographs, over-reach of social media and decline in parental values and norms, incompetency in adjustment with the nature of the infant, wide generation gap and burden of responsibilities of also acts as trigger for abuse[2].
Being a victim, a child goes through various phases such as being quite, staying in secrecy and helplessness. As per the sources of census of 2011, the total child population in India is 4441.5 lakhs. As per the NCRB data of 2020, 28.9% of the total child population goes through some form of crime against them but only 65.6% of the total crime committed is reported[3].
Considering the trivial nature of the effect of childhood abuse or trauma and to prevent further exploitation of any child, Government of India introduced the Prevention of Child Sexual Offences on 14th November, 2012 to protect and safeguard the best interest of the child[4]. Prior to this Act, the only statute that intended to guard the child’s interests and rights was the Goa’s Children’s Act, 2003, and Rules, 2004 and Indian Penal Code of 1860. This Act, has been active in providing a robust justice mechanism for the victims of sexual abuse and has highlighted the implications of child abuse and worth nature of child rights and safety, covering for both non-penetrative sexual assault and aggravated penetrative sexual assault[5].
Though this Act, provides advantage by being unbiased towards any gender specifically and provides justice to any child who has been sexually wronged and also there is no time or age bar for reporting any such offence under POCSO Act and also maintains confidentiality of the victim’s identity. There has also been new acknowledgements introduced where an episodic police verification will be done in any organization which houses children’s, secondly to train employees on child safety and protection and thirdly, zero tolerance to violence against children[6]. But, this Act also has its loopholes. By prescribing the age limit of the victims it endows that consent does not play any role, whatsoever be the status of the relationship between two individuals leaving the question what happens when two minors consensually engage in any kind of sexual activity or any one individual is a minor indulges in any such activity with consent.
ADOLESCENCE RELATIONSHIP- AN ETHICAL DILEMMA OR LEGAL OBLIGATION
Relationship comprising of any two individuals is a universal phenomenon. No one is spared from the touch of romance and sexual compulsion, especially during adolescence. Adolescence is a phase where a child is in its process of developing into an adult[7]. In this phase they make all effort to present themselves to act responsibly and otherwise too indulging in romantic relationships with their opposite gender. A healthy relationship plays an important role among them in shaping their personality and overall well-being of their progress. With striving for freedom for taking their own decisions, choosing their romantic partners too become a sensitive issue for them. But, in India there is a whole lot of different concepts and beliefs regarding romantic relationships particularly regarding teen or adolescents’ relationships. The families are usually against these relations during their intellectual enhancement stage. And because of following resistance and curiosity, one such step of sexual activity is undertaken by them irrelevance of the steps undertaken or sensitivity of the situation. But when do these relationships come under the purview of POCSO Act and how?
It is essential to recognize the delicacy of the relations between minors or any other individual. The sensitivity of the age and the risk behaviors involved in this stage has been receiving much attention these days. Single factors are not only to be blamed for any consequences because a lot of major factors support the finality of these relations where house environment plays a significant and foremost part. Most Indian families perceive that relations at such an age would be harmful for the child by discouraging their emotions. There is a taboo circling the atmosphere of the house where discussing such relations or any part of sexual activity is discouraged as well kept in a hush-hush tone. Caste also plays an important role, where any person who’s in a romantic relation with a lower caste would be seen as a disgrace of reputation in the society. Restricting girl child to engage in any kind of activities which includes number of boys at large. There is also an unusual change in the behavior of parents towards their child after knowing about any such relations. Though parents love us unconditionally but are they only to be blamed behind this uncertainty. Any disagreement arising between the persons which forces them to take legal steps.
With increase in technology, a fast over-exposure of illicit scenes which may or is creating curiosity in minds of youngsters. Irrespective of the fact that these leaves an impact on the minds of their, they tend to ignore it.
One major cause also is teenage pregnancy, which raises concern that whether these adolescents who are sexually active are on the wrong side of the Act? Violating the existing Acts meant to protect them from sexual offence[8]. Justice Narayana Pisharody, in Kerala High Court case held while rejecting the anticipatory bail filed under section 438 of Cr.P.C, that even after the consent is provided by the girl who was below 18 years of age, the opposite person who is the partner of the girl is treated as a criminal who has committed the offence of rape[9]. Therefore, the law leaves no other choice for him and he cannot plead that such an act was consensual. The girl was a minor, thus she can easily be lured in giving consent for sexual intercourse because she doesn’t have the understanding its implications afterwards. It was also stated by the Court that legally the age of consent for sexual act was 18 years, therefore no question arises for a girl to give her consent below 18 years. The main objective of the Act was to prevent abuse and exploitation of children at a tender age. Considering the question whether consent given by a minor would be a valid consent? The Court stated mere act of submission does not involve consent. If there is no voluntary participation in the sexual act, it would not amount to consent[10]. Here voluntary participating also includes understanding the consequences and moral quality of the Act. Consent is an act of reason accompanied by deliberation[11]. In case of minor, they lack the ability to think reasonably and realistically.
Adolescents in healthy sexual relationship are not viewed morally correct and is intolerant in the society. But many studies have shown that romantic relationships in adolescents helps in developing individual identity and sexuality.
If there is criminalizing of all forms of sexual relationship including consensual and non-abusive relationships the state violates the right of sexual autonomy and physical fulfilment of a young adult[12]. Cases including, inter-caste marriage without parent’s information or any inter-religious fling arising out of co-operation or any romance generating between those belonging to lower socio-economic groups or when young couples flee away due to family pressure are possibly registered under this Act.
WILL INCREASE IN AGE OF CONSENT REDUCE THE NUMBER OF POCSO CASES
It is an ongoing debate that whether increasing the age of consent will help in reducing the number of POCSO cases because not every child groups want to increase the age of consent thereby aiming to recognizing adolescents’ sexuality. But it is a matter of fact that whether we really want to judge only upon the reduction in numbers or genuinely curb the issue of increase in child abuse.
The Tamil Nadu government was directed by the Madras High Court to reconsider the meaning of the word ‘child’ to mean an individual below the age of 16 years instead of 18 years for the purpose of the POCSO Act, 2012[13]. Justice V Parthiban of the Madras High Court stated that consensual sex or bodily contact by a person above age of 16 could be eliminated from the provisions of the Act, because adolescents above this age were capable of giving their consent to sexual relations[14]. The POCSO charges was set aside by the Court due to lack of sufficient evidence presented by the prosecution. Significantly the girl who was the alleged victim proclaimed that she herself with her own consent had eloped with the accused. The Judge also highlighted a question that how could one define the situation where any girl who’s below 18 years and is in a relationship with a minor or who’s a major. Such relationship would not be considered as an alien or unnatural relationship[15]. But, where such minor girl has given her consent or was efficient and mature enough to give consent, the Act would unfortunately get attracted if it moves beyond platonic limits assuring a harsh imprisonment of 7-10 years.
The above following situation sets an example that POCSO has often come in clash in establishing the true nature of relationships between adolescents with the role of consent. Even, the misusage of the legislation to convict adolescent boys even when such relationships are made out of free will.
The only intention of the Act was to safeguard and protect children below the age of 18 years from sexual abuse. It never meant to criminalise consensual relationships between young adults as stated by Justice Jasmeet Singh[16]. Therefore, any case coming under the purview of the Act, its circumstances and facts must be looked upon also the consensual relationship borne out of love should be considered while granting bail to the convicts[17]. Without mixing other forms of possible activities of the adolescents not illegal in nature, the Act must stay focused on its aim to protect children from sexual assault, sexual harassment and pornography.
The cases are also increasing because of the pending of cases since the Act came out. These pending issues are since decades, even after establishing fast track courts. For example- only 36 cases were resolved in Assam where Meghalaya had the highest number of pending cases at 995[18].
CONCLUSION
Acknowledging the nature of the relationship between teenagers must not be criminalised. it has also been clarified by the Court that there is a need to maintain a balance in protecting teenagers involved in consensual loving relationship and prescribing strict punishments under POCSO Act.
Although, the age of consent is fixed as 18 years, we still consider different ages to define maturity. One needs to understand the difference between rape and sex, including consensual sex.
Thus, choice of an adolescent must also be taken care of considering the circumstances and facts of any given case. There is also a need in recognizing consensual sex, as sexuality also forms an integral part of a human’s personality[19]. It is a doubtful part whether adolescents are matured enough to take decisions of their own or they should be punished because of lack of maturity[20]. There’s a long way to go before the legislation will acknowledge any laws related to consensual sex among adolescents won’t form a part of decriminalisation.
[1] http://www.wikipedia.com (Last Visited on February 6, 2023)
[2] Amisha U. Pathak , “Child Abuse in India- An Analysis”, Political Science Undergraduate, BHU- Varanasi
[3] http://www.clearIAS.com (Last Visited on February 14, 2023)
[4] www.https//theleaflet.com , Gursimran Kaur Bakshi, “the Objective of POCSO is not to Criminalise consensual sexual Relations; it needs amendment: Justice Indira Banerjee, November 18, (2022)
[5] https://www.ipleaders.com (Last visited on February 16th, 2023)
[6] Parinaz Madan, “Five Things to know about the POCSO Act”, November 11, (2021)
[7] https://www.merriam-webster.com (Last Visited on February 18th, 2023)
[8] Dogra, E., Singh, A., Arora, P., & Aggarwal, Teenage Pregnancy- Sexually Violated or Sexually Active: Medico Legal Dilemmas of POCSO Act 2012 and other Related Acts. International Journal of Health Systems and Implementation Research, 3(1), 84-93, (2019)
[9] Dogra, E., Singh, A., Arora, P., & Aggarwal, Teenage Pregnancy- Sexually Violated or Sexually Active: Medico Legal Dilemmas of POCSO Act 2012 and other Related Acts. International Journal of Health Systems and Implementation Research, 3(1), 84-93, (2019)
[10] Dogra, E., Singh, A., Arora, P., & Aggarwal, Teenage Pregnancy- Sexually Violated or Sexually Active: Medico Legal Dilemmas of POCSO Act 2012 and other Related Acts. International Journal of Health Systems and Implementation Research, 3(1), 84-93, (2019)
[11] Dogra, E., Singh, A., Arora, P., & Aggarwal, Teenage Pregnancy- Sexually Violated or Sexually Active: Medico Legal Dilemmas of POCSO Act 2012 and other Related Acts. International Journal of Health Systems and Implementation Research, 3(1), 84-93, (2019)
[12] Neha Susan Varghese, “THE DOUBLE-EDGED SWORD OF CONSENT LAW IN INDIA”, Ph.D.Research Scholar (NET-JRF), School of Legal Studies, Cochin University of Science and Technology, Kerala, Volume 6, Issue 3, July- September (2021)
[13] https://www.leaflet.com (Last Visited on February 21st, 2023)
[14] https://www.leaflet.com (Last Visited on February 21st, 2023)
[15] https://www.leaflet.com (Last Visited on February 21st, 2023)
[16] https://www.outlookindia.com (Last Visited on February 22nd, 2023)
[17] https://www.outlookindia.com (Last Visited on February 22nd, 2023)
[18] https://www.timesofindia.indiatimes.com (Last Visited on February 22nd, 2023)
[19] Case Comment on Matter of Sabari & anr vs. The Inspector of Police & Ors.: Debunking the Concept of Consensual Relationship Among Adolescents Ms. Krishna Bhattacharya, Ms. Namrata Gayen, Mrs. Tulishree Pradhan, volume 9, Issue 2 February (2021)
[20] https://www.dailguardian.com (Last Visited on February, 2023)
Author: Shakshi Singh
Juris Centre 