Why are the mandatory provisions of the POCSO Act under challenge?
As commonly known, adolescence marks a phase of transition from childhood to adulthood. It is also accompanied by physical, emotional, and physiological changes, this formative period awakens curiosity about the world, sexuality, and independence, in ways that establish the adolescent apart from a young child and an adult. The World Health Organization and the United Nations recognize adolescence as the age between 10 and 19 years, while the term ‘young people’ is often used to refer to those between 10 and 24 years. Thus, it can be said that adolescence is often seen as a subset of youth, in a continuum with childhood.
When advocating for adolescent concerns, it is important to be well-versed with principles guiding responses to adolescents. The Convention on the Rights of the Child (CRC) recognizes adolescents[i] as a category within the child, but, calling for responses consistent with their maturity, evolving capabilities, capacities, and development, simultaneously securing protection available to children. Though the POCSO Act endeavors to envisage international best practices, while ensuring blanket protection to children, In my opinion, I feel it fails to implement certain rights specific to adolescents i.e., that it should take into account a child’s development and capabilities, as the approaches adopted to ensure the realization of rights of adolescents differ significantly from those adopted for younger children. The Convention on the Rights of Child (CRC) further explains that the term ‘Evolving Capacities’ are enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding and increasing the levels of the agency to take adequate responsibility and to efficiently exercise their rights[ii].
Is POCSO failing adolescent sexuality?
The Protection of Children from Sexual Offenses Act, 2012 was brought out as an answer to a dire call from the society that was reeling from an increasing rate of heinous crimes against young children. The future of the country was being choked in fear of such crimes, where a child, at a time when they should be learning and playing, were reduced to mere objects for satisfying the lusty minds of perverted people. The POCSO Act contains a strict requirement of mandatory reporting of an offense and penalizes all those who fail to do so with imprisonment or a fine[iii].
In conflating childhood with age-related minorities, the law treats childhood as a uniform phase of being till suddenly at 18 an individual assumes total decision-making capacity. It ignores the fact that childhood comprises several stages of development, especially adolescence being a distinctive phase. As mentioned earlier, adolescence is a period of transition from childhood to adulthood, while the POCSO commends to be comprehensive legislation keeping in mind a child’s best interests, it certainly fails to assess the same. Assessment of the best interests of children must include respect for the right of children to express his or her views freely and due weight must be given to all matters affecting children, as children matures, their views shall have increasing weight in the assessment of their best interests[iv].
Adolescence, for many, is a time of romantic and sexual exploration but for young people who are economically and socially marginalized, limited opportunities, dropping out of school and early induction to ‘adult’ responsibilities like earning a livelihood or performing domestic chores, make for the distraction of sexual relationships more alluring and attractive, when this is compounded with social stigma surrounding sexuality, especially expressions like that of inter-cast marriage, casteism, and gender segregation hinders the ability to make informed decisions.
In the year 1891, Hari Mohan Maity, aged 35, was acquitted of charges of causing the death of his 10-year-old while he had forced himself on her, due to this, the colonial government was compelled to push the age of consent from 10 to 12 years, it was later increased to 16, until, by the virtue of the Protection of Children from Sexual Offenses Act, 2012 (POCSO), it was raised to 18.
The law to prevent sexual abuse in children and to redress the victims or survivors came in response to the heated debate that was brought into light in the case of Sakshi v. Union of India[v]. This was a landmark case, which sparked some controversy due it its restricted interpretation of what actions constitute rape, especially in cases involving children. POCSO addressed this ambiguity by bringing all sexual acts involving children into its ambit. The legislation is also gender-neutral in naming the victim as well as the perpetrator.
In recent years, there has been a growing demand for decriminalizing the acts of consensual teenage sex, particularly for those falling in the age bracket of 16-18 years. This is a major issue because a minor’s consent is considered immaterial in law, and several teenagers on the cusp of their age of majority have found themselves entangled in a web of criminal prosecutions.
Mandatory provisions under challenge
Sec.19 of the Act is one such provision that makes it mandatory for any person including the child to approach the police in case of even an apprehension that an offense under this Act has been committed or has the knowledge that such Act has been committed. Sec.21 is a penalizing provision, punishing a person who fails to report the offense for six months or with a fine. Sec.22 is also under challenge as the provision provides for punishment against the filing of a false complaint or false information under the Act.
The Supreme Court in a recent landmark judgment[vi] in September 2022 held that doctors need not disclose the identity and other personal details of the minors seeking medical termination of pregnancy. In continuation of the Supreme Court judgment, Justice Pratibha M Singh directed the Delhi Government to issue a circular directing that the identity of minor girls and their family shall not be disclosed in the report prepared by registered medical practitioners (RMP) to the police. Further, The Supreme Court also clarified that the exemption to doctors from mandatory reporting is only for “limited purposes of providing medical termination of pregnancy in terms of the MTP Act.”
In the petition[vii] challenging the POCSO Act, it has been alleged that thousands of adolescents are languishing in jails as under trials or convicts for having consensual sex with those under 18 minors. The petition argues that the impugned sections not only violate the right to privacy but also take away the minor’s agency. The petition further argues that, with fast-changing societal norms, 16 to 18-year-old youngsters (even 14 and 15-year-old youth included) are exploring their sexuality through bold physical experimentation. Entangling them in criminal cases is clearly a testimony of complete disconnect with reality, the petition argues.
Courts on Consensual Sex vis-a-vis POCSO Act
Are the law, policy, and support services for adolescents compliant with CRC principles? Post all these discussions, it is now important to check whether there is a consistent recognition of adolescents in Indian law, policy, and support services. Do law, policy, and support services adhere to the principles of the Convention on the Rights of the Child (CRC) that recognize evolving capacities of adolescents and their right to be heard as an essential part of determining the best interests of children? Are the policy measures in one area alert to cross-sectoral impact on another area of adolescent life? Do they prioritize the prevention of harm? Do they effectively tackle the effects of poverty and deprivation to minimize the level of vulnerability the adolescents are exposed to? Are the corrective responses based on principles of restoration rather than mindless punitive punishments?
While the petition before Delhi High Court does not particularly seek any relief in respect of age of consent and does not demand decriminalizing of consensual teenage sex, the courts across India have voted in favour of amendments in the law for consideration of cases wherein the minor girl unequivocally comes out in support of the accused and admits that their sexual activity was consensual.
Upholding the conviction of an accused in a POCSO case[viii], the Madras High Court in December 2022 said it is eagerly awaiting an amendment in the law to appropriately deal with cases involving relationships of adolescents. In Vijayalakshmi & Anr. V. State by Inspector[ix], the Court had earlier observed that the legislature must take into consideration the cases of adolescents involved in relationships and must swiftly bring necessary amendments under the POCSO Act.
In a unique case[x], the Delhi High Court recently granted bail to a 20-year-old after the victim i.e., the wife of the accused, told the Court that they were in a consensual relationship at the time of the alleged offense, and was willing to stand as a surety for him. The Delhi High Court has laid down criteria for considering such situations, In addition to the nature and quality of the evidence before it, the Court under the ruling can also factor in certain real-life considerations to tilt the balance against or in favor of the accused, while deciding a bail plea. Another important factor is that comparative age and the existence of “tacit approval-in-fact” can be considered in bail plea of cases of such nature.
The only way to deal with this menace is through policy responses, which need to be articulated within the POCSO Act itself. One way is to reverse the age of consent to 16 as it was previously. The other involves conceptualizing distinction in the law of sexual activity between children (those under 18) and a child and an adult. The National Commission on Protection of Child Rights (NCPCR) in its draft Bill of 2010 of the POCSO Act had offered a ‘proximate-in-age’ clause that allowed the exception of consensual sexual activity within peers under the age of 18 within the age gap of 2-3 years. In conclusion, the recognition of adolescents in legal responses and policy along with age-appropriate confidential, legal access to comprehensive sexuality education could go a long way in protecting adolescents from abuse and criminalization.
[i] CRC General Comment No. 20
[ii] CRC General Comment No.20, Para 18
[iv] CRC General Comment 14
[v] Writ Petition (Crl) No.33, 1997
[vi] Ms.X v. State of Maharashtra, Criminal Appeals No. 822-823 of 2023
[vii] Harsh Vibhore Singhal v. Union of India
[viii] Ravi@Virumandi v. State and Anr, CRL.A.No.627 of 2021
[ix] Crl. O.P.No.232 of 2021
[x] Mrs. Pooja Kumari v. GNCTD, W.P. (C) 16607/2022 & CM Appl. 52253/2022