Date : 26/07/2023

Relevance: GS Paper 2: Government Policies and Intervention

Keywords: POCSO Act 2012, Child Marriage (Amendment) Bill, 2021, The Madras High Court in Vijayalakshmi v State (2021) judgment

Context-

• Recent judgments by various High Courts in India have raised significant debates around the issue of consensual sex involving minors and its implications under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
• In the past month, at least three High Courts have either quashed FIRs or acquitted accused persons based on claims of consensual sex with minor victims.
• These rulings have drawn attention to the age of consent, the role of POCSO, and the need to protect vulnerable children from sexual exploitation.

Context and Overview of Recent Judgments

• The Delhi High Court, Bombay High Court, Madras High Court, and Madhya Pradesh High Court have been involved in recent cases where the accused were released or acquitted on the grounds of consensual sex with underage victims.
• In some instances, the courts did not consider the age difference between the accused and the victim, or the mandatory legal presumption in favor of the prosecutions.
• The judiciary's stance on consensual sex cases has raised concerns about setting a clear boundary for the age of consent and the objective of POCSO in safeguarding children.

Defining Consent and Age of the Child

• Under POCSO, a "child" is defined as any person below the age of 18 years, and acts of penetrative sexual assault on children are criminal offenses.
• The purpose of this definition is to protect children from sexual assault irrespective of their consent, considering their vulnerability. However, recent judgments have not given due regard to the age of consent or the legal  presumption in favor of the prosecutions.
• The courts have not considered reducing the age of consent from 18 to 16 years, as recommended by some sources.

Drawbacks of the POCSO Act:

• Under the POCSO Act, 2012, and under several provisions of the IPC, whoever commits a penetrative sexual assault on a child — anyone below 18 years of age — can be “imprisoned for a term which is not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.”
• Even if the girl is 16 years old, she is considered a “child” under the POCSO Act and hence her consent does not matter, and any sexual intercourse is treated as rape, thus opening it up to stringent punishment.
• There have been several instances in the past few years when the courts have quashed criminal proceedings of rape and kidnapping, after being convinced that the law was being misused to suit one or the other party.
• The act also does not recognize consensual sex between pre-adult teenagers, often putting the boy in this case as an accused of rape charges.The law that criminalises adolescent sexuality either ignores social reality or pretends to do so. According to the NFHS-5, for instance, 39% women had their first sexual experience before turning 18.The same survey provides additional evidence of sexual engagement among unmarried adolescent girls by reporting contraception use by 45% of unmarried girls in the age group of 15-19 years.

Misuse of Act

• A study conducted in 2019 by Partners for Law in Development titled "Why Girls Run Away to Marry – Adolescent Realities and Socio-Legal Responses in India" advocated for setting a lower age of consent than the age of marriage. The aim was to decriminalize consensual sex among older adolescents and protect them from potential misuse of the law by parents seeking to control their children's choice of marriage partners.
• The study highlighted scenarios where young couples elope due to opposition from their families. Subsequently, families file cases with the police, resulting in the boy being charged with rape under the POCSO Act and abduction with the intent to marry under the IPC or the Prohibition of Child Marriage Act, 2006.

Addressing the Gap and Ensuring Child Protection

• The reluctance of courts to convict accused persons in consensual sex cases might be influenced by the harsh minimum imprisonment terms prescribed under POCSO.
• The Bureau of Police Research and Development's analysis of consensual sex cases across states can aid the Central government in making informed decisions about reducing the age of consent. However, the caveat of the "best interest of the child" must be incorporated to ensure protection.
• With courts and rights activists urging a revision to the age of consent criteria, the government must take proactive measures to address the issue.
• Concurrently, there is a need to educate adolescents about the strict provisions of the POCSO Act and the IPC to enhance their awareness.
• In response to the directive from the Karnataka High Court Bench, the Principal Secretary of the Education Department should form a committee responsible for developing appropriate educational material on sexual offenses law and its consequences for adolescents.
• Law reform is crucial to reassess the age of consent and prevent the unwarranted criminalization of older adolescents engaging in consensual and non-exploitative acts.
• While some activists advocate for amending the POCSO Act, a parliamentary committee is examining the Prohibition of Child Marriage (Amendment) Bill, 2021, which aims to raise the minimum age of marriage for women to 21 years.
• However, rights activists express concerns that increasing the marriage age might subject vulnerable women to continued family and societal pressures instead of helping their community.
• The government should carefully review the provisions of the POCSO Act that are susceptible to misuse and consider amending them while prioritizing the principles of the Right to life, survival, and the best interests of all children.

Conclusion

While reducing the age of consent falls under Parliament's jurisdiction, the Supreme Court must promptly address the disparity between the laid-down law and different interpretations by High Courts. The Madras High Court in Vijayalakshmi v State (2021)judgment, made it imperative to draw a line demarcating the nature of acts that should not be made to fall within the scope of this stringent law.So that a bottom-line age of consent can be decided properly.

Source : The Hindu