(This was first published on 15 December 2022. It has been republished from The Quint's archives after Justice Jasmeet Singh of the Delhi High Court stressed on the need to address the blatant criminalisation of 'adolescent love' under the POCSO Act at a seminar organised by Delhi Commission for Protection of Child Rights on 6 May.)
The Protection of Children from Sexual Offences (POCSO) Act, 2012, has recently made the headlines, but not just in light of brutal cases. Multiple stakeholders, most notably Chief Justice of India DY Chandrachud, have called for the legislature to revisit the age of consent.
"In my time as a judge, I have seen that this category of cases poses difficult questions for judges across the spectrum," he said, adding:
"There is a growing concern surrounding the issue which must be considered by the legislature in view of reliable research by experts in adolescent health care."
The CJI's recent statement echoes the opinions of the Karnataka High Court, Madras High Court, Justice Verma Committee, numerous child rights NGOs, and several experts who participated in the State Consultations on POCSO over the past few months.
The current age of consent, which is 18 years, does not reflect societal realities and results in the law criminalising adolescent sexuality rather than focusing only on child sexual abuse. We echo multiple others when we say we believe that the age of consent must be reduced to 16 years for the following reasons.
Data Suggests Misuse of Child Protection Laws
Data supports such an amendment to the legislation. In its recent study, Enfold Proactive Health Trust found that 24.3 percent of the total cases disposed of between 2016-2020 in Assam, Maharashtra, and West Bengal were "romantic cases," and that in 87.9 percent of these cases, the girl "victim" admitted to being in a romantic relationship with the accused.
This is similar to the 2018 study by the Centre for the Child and the Law at National Law School of India University, which revealed that romantic cases constituted over 20 percent of cases in Andhra Pradesh, Delhi, Maharashtra, and parts of Karnataka.
The takeaway, therefore, is that POCSO cases are frequently filed as a tool of retribution by the girl's family. The Prohibition of Child Marriage Act (PCMA) is similarly misused by families against eloping couples.
A 2020 study by Partners for Law and Development found that 65 percent of PCMA cases pertained to marriages that were "self-arranged," and not, as one would imagine, against parents forcibly marrying off their young daughters.
Such data studies are essential tools that the legislature must take into account for laws to serve their intended purpose.
Juveniles Can Be Tried as Adults, but Cannot Consent To Sex?
While the POCSO Act criminalises any sexual behaviour involving a minor under the age of 18 years, just three years after it was introduced, the Juvenile Justice (Care and Protection of Children) Act, 2015, allowed for children between the ages of 16 to 18 years to be tried as adults in certain circumstances.
In cases of heinous offences, the Juvenile Justice Board is required to conduct a "preliminary assessment" in which it evaluates whether the child has the ability to understand the consequences of the offence alleged, their physical and mental capacity to commit the offence, and the circumstances in which the offence was committed.
It is interesting, and perhaps paradoxical, that the law provides for 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 impact of the legislation is not limited to the men and boys accused of sexually abusing their romantic partners. Their lives are derailed – often destroyed – given the trauma of incarceration, the impact on their education and livelihood, and the stigma they face.
The young women with whom they are in relationships also suffer. In one of NGO iProbono's cases, a 17-year-old girl eloped with her partner and was pregnant by the time her family filed a complaint alleging kidnapping and rape.
Her partner wound up in custody and she was forced to stay with an aunt, despite wishing to remain with her partner's supportive family. This is but one of many cases we have seen where girls, who do not consider themselves victims, are treated as such by the justice system.
The Impact Beyond the Accused & 'Victim'
The impact of these issues is not limited to the accused and "victim" either. Data indicates that up to 25 percent of POCSO cases before the criminal and juvenile justice systems are a waste of their limited resources – both financial and judicial. In addition, there is a common perception that most POCSO cases are, by definition, false cases, many of which are filed to implicate young men in romantic relationships.
In equating sexual relationships that would be legal but for the age of consent with brutal cases involving incest, gang rape, and serious physical harm, the law, as it stands, undermines the gravity of the POCSO Act itself and offences that it was meant to criminalise.
The Way Forward: Reduce Age of Consent
The need of the hour is for the legislature to reduce the age of consent from 18 to 16 years.
This was the age of consent from 1940 till the passing of the POCSO Act in 2012, and is still the age in parts of the subcontinent such as Bangladesh, Sri Lanka, and Bhutan, as well many liberal countries, including the United Kingdom, Canada, Russia, Switzerland, and South Africa.
As suggested by Enfold Proactive Health Trust in their excellent study, adolescents between 16 and 18 years should continue to be protected under the POCSO Act when subjected to non-consensual sexual acts.
This would ensure that while consensual sexual relationships between adolescents are not needlessly criminalised, this age group would continue to receive the protection of the child-friendly provisions of the POCSO Act in cases of sexual abuse – thus achieving the spirit of the law.
(Deeksha Gujral is the India Program Director of iProbono, a legal justice NGO that focuses on child rights. She studied law at Cambridge University and was previously a practicing advocate. Nimisha Menon, an iProbono Program Officer, works on the organisation’s trial court POCSO litigation. This is an opinion piece and the views expressed are the authors' own. The Quint neither endorses nor is responsible for their views.)