Ten Years of POCSO Act: Conflicting Stands by Different High Courts Raise Key Concerns

An analysis of the approach taken by different courts in India while deciding cases related to consensual sexual relationships under the POCSO Act shows that the provisions of the Act are being misused and often do more harm than good. The Act is often used as a tool to enforce religious endogamy and caste by the families of young women.

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What has been a perpetual grey area in the operation of the POCSO Act?

The Meghalaya High Court in a recent judgment has quashed charges under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) against the accused on the ground of a consensual relationship between the accused and the victim. However, the Allahabad High Court has recently denied bail to an accused where the accused and the victim had married voluntarily and had physical relations. The court stressed that the consent of a minor is no consent in the eyes of law.

Consensual sexual relationships, especially where the parties are minors or the supposed victim is a minor while the accused is just over 18 years of age, have been a grey area under the POCSO Act for quite some time now. Different courts have taken a different stand while considering incidents of consensual sex under the POCSO Act, resulting in uncertainty.

Why is compulsory reporting of cases problematic?

India is a country that is not restricted to only one religion or custom; it has a diverse range of customs and traditions. People following certain customs and traditions usually marry before they attain the age of 18 years, and child marriage is common in their community. In a report published by UNICEF, it is estimated that there are approximately 223 million child brides in India. The legal age of marriage is lower than 18 years under certain personal laws in India but Section 19 of the POCSO Act makes it mandatory to report to the special juvenile police unit or to the local police upon getting knowledge about the commission of any offense under the act.

Consensual sexual relationships, especially where the parties are minors or the supposed victim is a minor while the accused is just over 18 years of age, have been a grey area under the POCSO Act for quite some time now.

The Supreme Court has recently held that the non-reporting of sexual assault cases despite knowledge is a serious offense under the POCSO Act. This provision makes it mandatory for the doctor to report every case where a minor is found to be pregnant upon medical examination. Upon receipt of such a report, the police authorities are mandated to register a first information report against the person who is responsible for the pregnancy.

This results in more harm than good to the victim as her partner is soon arrested under provisions of the POCSO Act and remains behind bars until bail is granted, which is difficult to obtain as the offences under the Act are non-bailable in nature.

The situation is similar in cases of consensual physical relationships between unmarried young couples. Such accused are usually acquitted at the end of the trial process, but why should they even be arrested for following their customs or exploring sexual desires? The victim too suffers from immense mental trauma as she has to look after her new-born and also fight the legal battle for her husband. Who will compensate the woman who could not get the help of her husband when she needed it the most, or the child who could not get her father’s affection during the initial days of the child’s life?

This gendered aspect is often used by the families of young women to control their sexual autonomy and enforce religious endogamy, as complaints against the boy in case of consensual relationships are often filed by the family members of the girl.

This goes against the very object of the Act, which is to protect children. The incarceration of innocent young men is highly problematic. Even if the court acquits the accused, the days lost in prison cannot be revived back. The man’s image in society is completely tainted and it often becomes an impediment to getting employment later in his life. With employment opportunities getting curtailed, they might resort to crimes or unethical activities in order to earn their livelihoods. The Act might therefore be adding fuel to the production of criminals rather than preventing it.

What is the gender bias in the operation of the Act?

The POCSO Act is a gender-neutral legislation and it equally penalises sexual offenses against children of all genders, but what happens in case of a consensual physical relationship between two minors? The girl is assumed to be the victim, while the boy is assumed to be the perpetrator and arrested. The assumption is based on patriarchal values where the sexual autonomy of women is controlled and women are thought to be incapable of taking their own decisions.

This gendered aspect is often used by the families of young women to control their sexual autonomy and enforce religious endogamy, as complaints against the boy in case of consensual relationships are often filed by the family members of the girl. This, in turn, can act as a threat to inter-religion or inter-caste relationships, as reported by HAQ, a child rights organisation.

The criminality so attached can be aggravated by the fact that they might be tried as an adult if they are above 16 years of age, as per the Juvenile Justice (Care and Protection of Children) Act, 2015. This equates them with any other offender accused of a heinous offense, and makes them stay in the same facilities which are provided to an accused of a heinous crime.

What is the way forward?

A study by the International Institute of Population Sciences and the international, non-profit, non-governmental organisation, the Population Council had noted that about 26 per cent of women and 42 per cent of men in romantic relationships and aged between 15 and 24 years had had sexual reltions with their partners. While the Prohibition of Child Marriage Act, 2006 fixes the age of marriage at 18 years for women, the huge number of child marriages has already been discussed at length earlier in this article and is a societal reality. Child marriage is a social evil and must be prevented, but not by punishing a prospective father for rape and destroying a family which was looking forward to a happy life.

A provision which does not take into consideration our societal and cultural realities is bound to have adverse implications, which have become more apparent in recent times when courts have gone beyond the provisions to acquit the accused in cases of a consensual sexual relationship, where the age gap is very small.

According to the Sexual Offences Act 2003, the age of consent for sex is 16 years in the United Kingdom. Considering the fact that children at the age of 16 years are vulnerable and can be misled, the consent of a person aged between 16 and 18 years can be vitiated if an adult who holds a position of trust in relation to the person gets into a physical relationship with the person. It also clearly mentions that a person needs to be over 18 years in order to be accused under this section.

In view of the practices prevalent in India and in the absence of a Uniform Civil Code or a strictly enforced Prohibition of Child Marriage Act, it is unfair to punish someone for following their customs or following practices which the personal law allows. So, a provision similar to the one present in the United Kingdom can be brought in India, which lowers the age of consent but provides checks in order to check if the consent was indeed free and not misled.

The gender bias which does not exist in the Act but is practiced on ground can be removed by bringing in a Romeo-Juliet law, which exists in various states in the United States. A Romeo-Juliet law is a provision that protects young couples if one or both of them fall below the age of consent but the age gap between them is small, and they had engaged in a consensual sexual relationship.

While most of the courts are already considering the principles of Romeo and Juliet laws while deciding cases where the difference between the age of the victim and accused is small, bringing a provision that explicitly mentions it, will prevent incarceration of innocent teenagers. It will also uphold the sexual autonomy of young couples and prevent families from controlling the bodies of young couples, especially women. It will also go a long way in preventing the families from enforcing religious endogamy.

In the absence of a Uniform Civil Code and in a country which takes pride in the cultural and religious diversity, a one-size-fits-all statute like the POCSO Act can cause more harm than good. A provision which does not take into consideration our societal and cultural realities is bound to have adverse implications, which have become more apparent in recent times when courts have gone beyond the provisions to acquit the accused in cases of a consensual sexual relationship, where the age gap is very small. Unfortunately, even after ten years of its existence and the large number of cases which have called for an amendment, the legislature has not acted on the same.

This Children’s Day, which also marks ten years of an Act which was celebrated for protecting children from sexual abuse, the legislature should also consider the rights of those children or young adults who are incarcerated for exploring their sexual desires.

Srinjoy Debnath is a first-year, B.A. LLB (Hons.) student at the National Law School of India University, Bengaluru.