During a keynote address at the National Annual Stakeholders Consultation on Child Protection, Chief Justice of India D. Y. Chandrachud, asked the legislature to address the “growing concern” on the incrimination of adolescents who engage in consensual sexual activity and criminalization of romantic relationships under the Protection of Children from Sexual Offences (POCSO) Act. The Act fixed the minimum age of consent at 18 years. “As you are no doubt aware, the POCSO Act criminalizes all sexual activity for those under the age of 18, regardless of whether consent is factually present between the two minors in a particular case. In my time as a judge, I have observed that this category of cases poses difficult questions for judges across the spectrum,” the CJI said.
This article digs deep into the reasons behind these statements made by the CJI. The POCSO Act has increased the age of consent from 16 years to 18 years which results in denial of right of adults to engage in voluntary sexual activity. The provisions are being misused to file false cases, most of the time they are against a male adult. It has increased the burden of cases on judiciary and also creating fear in the mind of adults. Various studies says that around 70 percent of the cases result in acquittal. In such a scenario, does the legislature needs to review the law?
Introduction
“Sexual autonomy encompasses both the right to engage in wanted sexual activity and right to be protected from unwanted sexual aggression. Only when both aspects of adolescent’s rights are recognized, human sexual dignity can be considered to be fully respected”, said Justice Bharati Dangre, Bombay High Court while setting aside the conviction of a young man under the POCSO Act, 2012 in XYZ v. State of Maharashtra[1]. Judiciary and various studies are constantly raising concerns over criminalization of consensual sexual relationships due to unaddressed question of consent in the POCSO Act. The Act was enacted to provide stringent provisions to protect children from sexual abuse. But misuse of these provisions rendering the adults incapable to engage in consensual sexual activity.
Age of Consent under The POCSO Act and Criminalization of Romantic Relationships
The Act defines ‘Child’ as any person who is below age of 18 years. It has increased the age of consent from 16 years to 18 years and thus penalizes any sexual activity by a person who falls under this definition whether it is consensual or not. The age of consent means age at which a person is capable of giving consent. The Act considers any person below 18 years (minor) incapable of giving valid consent and hence consent of minor is no consent in the eyes of law. This increase in age of consent has resulted into undue criminalization of romantic relationships and consensual sexual activities among adults.
According to a study in 2019, 77% of children arrested under the POCSO Act were between the age group of sixteen years to eighteen years out of which only 0.4% were girls. Also, various studies shows that most of the girls and boys turn sexually active around the age of 15 due to physiological and hormonal changes upon the onset of puberty. The NFHS4 (2015-16) reported that 11% of girls had their first sexual intercourse before the age of 15, and 39% before the age of 18. This ground reality is ignored by this legislation. In other words, the POCSO does not take into consideration adolescent sexuality. The Act fails to recognize sexual exploration as a natural part of adolescence.
This ends up into wrongful incrimination of adolescents in consensual sexual activity and criminalization of romantic relationships. A series of studies in 2016 found that over 20 per cent of the child sexual abuse cases in the states of Assam, West Bengal, Andhra Pradesh, Maharashtra and Delhi, constituted a case of consensual sexual relationship between both the parties. ‘A Decade of POCSO’ report released by VIDHI in last December highlighted that one in every three POCSO cases end in acquittal. A similar study in 2022 shows that 93 percent of the surveyed cases ended in acquittal where the girl admitted to be in a consensual, romantic relationship with the accused.
Impact of increased Age of Consent
One of the worst impacts of this is that it has created fear of prosecution among the adults. It compels adults to hide pregnancies and to choose unsafe abortion methods which reults into denial of their right to safe and legal abortion. This has a deep-rooted impact on the reproductive and sexual health of young girls.
Many at times it is observed that POCSO cases are often filed by the parents of the girls, who has eloped or in love with a person of their choice. These instances are often reported when these relationships are formed outside the boundaries of caste or religion. This misuse and abuse of the legislation is fueled by patriarchal, social and cultural biases. In such cases the boy becomes a criminal for being in a consensual relationship. Under section 29 of the POCSO Act, person who is accused under sections 3,5,7 and 9 is presumed to be guilty. This presumption is rebuttable but it makes him criminal even before his guilt is proven.
Now a days, courts are taking progressive decisions and in cases where the relation was consensual accused gets acquitted. Another such case was Imran Iqbal Shaikh v. State of Maharashtra[2]. In this case, the Bombay High Court observed while granting bail to a 23-year-old man who was booked on charges of raping a minor, that “The Protection of Children from Sexual Offences (POCSO) Act was not enacted to punish minors in a romantic or consensual relationship.” But till the time decision comes, the accused loses his dignity and respect in eyes of society. The Act talks about non-disclosure of identity of the victim but does not mention the same about the accused. It demeans the personality of the accused in the society. He loses liberty and opportunities to grow as person which is a fundamental right under Article 21 of the constitution of India. Their lives are often destroyed by trauma of detention and it impacts their career and livelihood.
Criminalization of consensual sexual engagements strips of the liberty of adults to enter into sexual engagement voluntarily. The law does not only deny the bodily autonomy of adults but also allows third parties to interfere in their romantic relationships. This goes against the decision of the Hon’ble Supreme Court in the case of Justice K. S. Puttaswamy (Retd). v. Union of India[3]. The Supreme court held that “it is the duty of the State to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.”
This indicates that no person who is below 18 years of age is allowed to engage in any kind of sexual activity. To put it in more simple words, no person below age of 18 years is allowed to indulge in sex before marriage. But as the age of puberty has dropped, it has implications on health and psyche of adults. The society and legislature need to change their approach. They shall look from the lens of adults and not from traditional lenses where sex and marriage are synonyms.
A paradox
It is an interesting paradox that the law accepts the possibility that an adolescent may be treated as an adult as far as committing heinous offences is concerned, but the same adolescent cannot consent to sex with the understanding and capacity of an adult. The POCSO Act criminalizes any sexual behavior involving a minor under the age of 18 years, but under the Juvenile Justice (Care and Protection of Children) Act, 2015, the law allows to try children between the ages of 16 to 18 years as adults in certain circumstances.
In case of heinous crimes, the Juvenile Justice Board is required to conduct a “preliminary assessment” to evaluate the ability of the child to understand the consequences of the alleged offences, their physical and mental capacity to commit the offence, and the circumstances in which the offence was committed. But the same is not seen in case of offences committed under the POCSO Act.
Impact of lowering the Age of Consent
Even though various reports and judicial decisions are suggesting to decrease the age of consent, 22nd Law Commission headed by Justice Ritu Raj Awasthi (retired) is not in this favour. The commission has raised various concerns over lowering the age of consent.
In many cases, victims give statement of consent after years of trial under coercion, influence or undue delay in trials which render them powerless. In such cases it is difficult to test the validity of consent. Second important issue is that thousands of minor girls are involved in commercial sex in India. These girls know what they are doing and they are doing it voluntarily for their livelihood. But doing sex trade voluntarily is not consensual and definitely it is not the case of romantic relationships. It is done under vulnerable situations and due to lack of other opportunities and choices. Third issue is if police start refusing to register FIR on the basis of theory of consensual elopement, many trafficking and abductions cases will go unreported.
Also, if we lower the age of consent because 70 percent of the cases under the POCSO result in acquittal, aren’t we making it difficult for other 30 percent victims to seek justice? Consent is a nuanced term. While testing the validity of consent various factors such as power dynamics, caste and religion equations, age gap between the victim and accused, etc. needs to be considered. A mismatch between age of consent and biological realities is the crux of this issue. But lowering the age of consent would not resolve the problem. A balance has to be struck down between the two to ensure the right of adults to engage in voluntary sexual activity.
Way Forward
The law must change but it’s intent shall not be diluted. In case of Sabri v. The Inspector of Police[4], the Madras High Court suggested a reform in the POCSO law, retaining the general age of consent at 18 years. The court said that “The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence.”
An exemption may be enacted by inserting a section in the chapter II on Sexual Offences Against Children in the POCSO Act, stating that nothing in this chapter would apply to consensual acts between persons not below the age of 16 years. This can prevent the harassment of young couples, allow the process of teenage sexual exploration and reaffirm the bodily autonomy of adolescent minors.
Conclusion
The Supreme Court of India and High courts have flagged this issue many times but the parliament has not yet considered revising the age of consent or amending the POCSO Act to meet the changing needs and realities of modern society. Also, comprehensive sex education including education about consent, awareness about good touch and bad touch would help to reduce the instances of sexual offences against children. These changes are important to ensure that the POCSO Act continues to serve the needs of children and promote their rights and well-being.
[1] 2023 SCC OnLine Bom 1390
[2] 2023 SCC OnLine Bom 1040
[3] AIR 2015 SC 3081
[4] 2019 SCC OnLine Mad 18850
Author: Shraddha Dhanwate
Juris Centre 