Earlier this month (13 July), the Bombay High Court observed that criminalising romantic relationships overburdens the criminal justice system, consuming significant time of the judiciary, police, and child protection system.
The court, thereby, overturned the conviction of a 25-year-old man who was accused of having sexually assaulted a 17-year-old. It also drew a distinction between child abuse and consensual adolescent sexual activity.
On 27 June, the Madhya Pradesh High Court in Rahul Chandel Jatav vs The State Of Madhya Pradesh and another expressed similar concerns and urged the center to reduce the age of sexual consent to 16 years (in place of 18).
Bombay HC Sets Aside POCSO Conviction: Why Should We Rethink Age of Consent?
1. 'Grey Area': What the Bombay HC Said
Bombay High Court's Justice Bharati Dangre, in her order, pointed out:
“…merely because the statute provides punishment for an act of sexual indulgence, as the girl has not attained the age of maturity i.e. 18, when it can be specifically inferred from her conduct that she was capable of understanding the consequences of her act, I am of the opinion that the learned Special Judge has erred in convicting the appellant…”
The court further recognised that the natural feelings and changes during adolescence cannot be "stopped" by the POCSO Act, and punishing minors for consensual relationships would not be in the best interest of the child.
Although the age of consent was meant to target the sexual exploitation of children, the court said it "has created a grey area" by criminalising consensual teenage relationships.
The court also suggested that the issue should be addressed by the Parliament.
Noting that the girl was “capable of understanding the consequences of her act," the court set aside the conviction of the accused.
Expand2. What Courts Have Said in The Past
The constitutional courts have, on several occasions, taken into account factors such as consent and the nature of the relationship, besides paying heed merely to the age of the survivor. They have also acknowledged that adolescent relationships are normal and criminalising such acts adversely affects both parties.
In an order from January 2021, the Madras High Court observed that the POCSO Act is not intended to regulate cases of romantic relationships between adolescents or young adults.
In October 2022 the Delhi High Court clarified that POCSO aims to protect children below 18 from sexual exploitation, and not to criminalise romantic relationships between consenting young adults.
In an order from January 2019, the Madras High Court suggested that the Act can be amended to exclude consensual sex after the age of 16 from the rigorous provisions of the POCSO Act.
Expand3. And Is The POCSO Act Vulnerable To Misuse?
Lawyers say yes, it is possible.
In conversation with The Quint, Advocate Shivangi Sharma, who practises in the Delhi High Court said: "it gets even more complicated when it comes to interfaith couples because other than putting POCSO against them the families also try to put anti-conversion laws against the boys. Given the current socio-political scenario, the courts do not consider the sensitivity attach to it and they do not consider the sides of the parties involved they are very influenced by the families".
Adding to this Advocate Nupur Agarwal, who practises in the Delhi High Court, emphasised the importance of taking the victim's statement independently, outside the influence of their family, in cases of alleged misuse of the POCSO Act, especially in cases of interfaith couples.
She noted that “there is the need for guidelines to govern interactions with victims at every stage of the case, ensuring a fair and unbiased process”.
Expand4. But Also...
As pointed out by Advocate Sharma, in many cases, there is a significant age difference between the parties involved, with girls often being much younger than boys. Even in seemingly consensual relationships, coercion and intimidation may be present, making it difficult for the victim to articulate their true feelings.
She mentions that, “the notion of consent is not always straightforward, especially when there is a substantial power imbalance between the individuals. The older party may use their influence and control over the younger person, leading to confusion about the true nature of consent. Thus, she highlights the complexity of consent and the need to recognise that it cannot be treated uniformly in all situations”.
In 2020, more than 99% of POCSO cases involved female victims, indicating a significant gender imbalance in the reported incidents
Expand5. The 'Romeo- Juliet' Clause
In a quest for balanced regulation, a slew of jurisdictions including France, and several American states, embrace 'Romeo-Juliet' clause or 'Romeo Juliet' laws.
This provision provides protection, to some extent, to those accused of sexual offences in cases where the age difference between the two parties is minor.
Some countries, such as Germany and Italy, even set the age of consent to as low as 14, to allow responsible exploration.
Constitutional courts in India too have advocated for a reduction of age, such as in a case from 2019, in which the Madras High Court had said:
"...on a profound consideration of the ground realities, the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age ]of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision..."
Further, the court held that "the (POCSO) 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."
Expand6. So, What Needs to Be Done?
The way forward, thus, evidently requires understanding the difference between abusive and non-abusive sexual behaviour while drafting laws regulating minors.
There is a need to incorporate comprehensive sex education and public education campaigns. Not only will it help raise awareness, but will also sensitise minors about their rights and responsibilities.
"There is a need to incorporate comprehensive sex education and to sensitise kids to understand what inforned consent is...Not only will it help raise awareness, but will also sensitise them about their rights and responsibilities" Advocate Shivangi further said.
In her ruling, Bombay High Court's Justice Bharati Dangre had said:
"The age of consent necessarily has to be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must take note of this important aspect."
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)
Expand
'Grey Area': What the Bombay HC Said
Bombay High Court's Justice Bharati Dangre, in her order, pointed out:
“…merely because the statute provides punishment for an act of sexual indulgence, as the girl has not attained the age of maturity i.e. 18, when it can be specifically inferred from her conduct that she was capable of understanding the consequences of her act, I am of the opinion that the learned Special Judge has erred in convicting the appellant…”
The court further recognised that the natural feelings and changes during adolescence cannot be "stopped" by the POCSO Act, and punishing minors for consensual relationships would not be in the best interest of the child.
Although the age of consent was meant to target the sexual exploitation of children, the court said it "has created a grey area" by criminalising consensual teenage relationships.
The court also suggested that the issue should be addressed by the Parliament.
Noting that the girl was “capable of understanding the consequences of her act," the court set aside the conviction of the accused.
What Courts Have Said in The Past
The constitutional courts have, on several occasions, taken into account factors such as consent and the nature of the relationship, besides paying heed merely to the age of the survivor. They have also acknowledged that adolescent relationships are normal and criminalising such acts adversely affects both parties.
In an order from January 2021, the Madras High Court observed that the POCSO Act is not intended to regulate cases of romantic relationships between adolescents or young adults.
In October 2022 the Delhi High Court clarified that POCSO aims to protect children below 18 from sexual exploitation, and not to criminalise romantic relationships between consenting young adults.
In an order from January 2019, the Madras High Court suggested that the Act can be amended to exclude consensual sex after the age of 16 from the rigorous provisions of the POCSO Act.
And Is The POCSO Act Vulnerable To Misuse?
Lawyers say yes, it is possible.
In conversation with The Quint, Advocate Shivangi Sharma, who practises in the Delhi High Court said: "it gets even more complicated when it comes to interfaith couples because other than putting POCSO against them the families also try to put anti-conversion laws against the boys. Given the current socio-political scenario, the courts do not consider the sensitivity attach to it and they do not consider the sides of the parties involved they are very influenced by the families".
Adding to this Advocate Nupur Agarwal, who practises in the Delhi High Court, emphasised the importance of taking the victim's statement independently, outside the influence of their family, in cases of alleged misuse of the POCSO Act, especially in cases of interfaith couples.
She noted that “there is the need for guidelines to govern interactions with victims at every stage of the case, ensuring a fair and unbiased process”.
But Also...
As pointed out by Advocate Sharma, in many cases, there is a significant age difference between the parties involved, with girls often being much younger than boys. Even in seemingly consensual relationships, coercion and intimidation may be present, making it difficult for the victim to articulate their true feelings.
She mentions that, “the notion of consent is not always straightforward, especially when there is a substantial power imbalance between the individuals. The older party may use their influence and control over the younger person, leading to confusion about the true nature of consent. Thus, she highlights the complexity of consent and the need to recognise that it cannot be treated uniformly in all situations”.
In 2020, more than 99% of POCSO cases involved female victims, indicating a significant gender imbalance in the reported incidents
The 'Romeo- Juliet' Clause
In a quest for balanced regulation, a slew of jurisdictions including France, and several American states, embrace 'Romeo-Juliet' clause or 'Romeo Juliet' laws.
This provision provides protection, to some extent, to those accused of sexual offences in cases where the age difference between the two parties is minor.
Some countries, such as Germany and Italy, even set the age of consent to as low as 14, to allow responsible exploration.
Constitutional courts in India too have advocated for a reduction of age, such as in a case from 2019, in which the Madras High Court had said:
"...on a profound consideration of the ground realities, the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age ]of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision..."
Further, the court held that "the (POCSO) 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, What Needs to Be Done?
The way forward, thus, evidently requires understanding the difference between abusive and non-abusive sexual behaviour while drafting laws regulating minors.
There is a need to incorporate comprehensive sex education and public education campaigns. Not only will it help raise awareness, but will also sensitise minors about their rights and responsibilities.
"There is a need to incorporate comprehensive sex education and to sensitise kids to understand what inforned consent is...Not only will it help raise awareness, but will also sensitise them about their rights and responsibilities" Advocate Shivangi further said.
In her ruling, Bombay High Court's Justice Bharati Dangre had said:
"The age of consent necessarily has to be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must take note of this important aspect."
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)