Open Access Research Article
POCSO ACT 2012: AGE OF CONSENT AND THE CRIMINALISATION OF ROMANTIC RELATIONSHIPS.
Published Paper
Article Details
POCSO ACT 2012: AGE OF CONSENT AND
THE CRIMINALISATION OF ROMANTIC RELATIONSHIPS.
AUTHORED BY
- BASANAGOUDA M PATIL
NLSIU, BANGALORE
India is
home to the largest adolescent population in the world. These children and
adolescents are victims of various violence and sexual violence is the most
prominent one among them. So, to protect children from sexual offences the
parliament has enacted the Protection of Children from Sexual Offences Act,
2012 (POCSO Act). This Act provides a comprehensive framework complete with substantive and
procedural provisions to address sexual offences against children. As per POCSO
Act, a child is a person who is below the age of 18 years.[1]
The original bill that was proposed considered the age of consent to be 16.[2]
However, this provision was changed and currently, the age of consent in India
is 18 years without giving any regard for adolescent sexuality.
As per NFHS-5 (2019-21),
39% of women had sex for the first time before they attained 18 years. This
report indicates that teenagers in India are sexually active. The legislation,
however, does not consider the possibility of consent to non-exploitative
sexual activities by adolescents. As per the provisions of the POCSO Act and
the Indian Penal Code, these consensual sexual intercourses would amount to
criminal offences. The issue under consideration in this paper is the
criminalisation of such consensual relationships between teenagers. As per NCRB, the number of victims under 6 years of age and between 6 to 12 years was
675 and 3297 respectively, they almost increased by five times in the 16 to 18
age group. POCSO victims between 12 to 16 years and 16 to 18 years were found
to be 13256 and 16275 respectively in 2021.[3]
As per the report by Child and the Law at the National Law School of India University
(CCL-NLSIU), it was revealed that romantic cases constituted almost about 22% of all the cases filed under the POCSO
Act.[4]
So, the criminalisation of romantic relationships is a menace that has burdened
the judiciary and has impacted teenagers severely.
In this paper, the
jurisprudence around the age of consent would be looked into through various
dimensions. This would be followed by the approach of different countries to
the concept of age of consent and measures used to prevent the criminalisation
of romantic relationships. The romantic relationships and the interpretation of
the consent by various courts would be analysed through case laws. Finally,
suggestions would be made to protect teenagers by upholding their rights.
AGE OF CONSENT
The age of sexual consent is the age
at which an adolescent is deemed mentally capable to consent to sexual contact.
As per section 375 sixthly of IPC rape is any kind of sexual activity with a
girl either with or without her consent, when she is under eighteen years of
age. The only deciding factor between legal sexual activity and statutory rape
under section 375 sixthly is age. All the statutory rape laws in different
countries are intended to discourage adults from pursuing sexual relationships
with minors.
The age of
consent and its origin in India can be traced back to the colonial period and
its statutes. The Age of Consent Act of 1891 was enacted as a response to Queen-Empress
v Hurree Mohun Mythee case.[5] In
this case, Phulmoni Dasi, at the age of 10 married a man of 35 years old. She
died as her husband forcibly tried to consummate her. This event results in the
enactment of the Age of Consent Act of 1891. Over time the age of consent has
kept on increasing. The following table shows the change in age in the age of
consent.[6]
|
Year
|
Relevant Acts and Sections
|
Age of Consent under section
375, 6th Clause I.P.C
|
|
1860
|
-
|
10 Years
|
|
1891
|
Act 10 of 1891
(After the Amendment of
IPC)
|
12 Years
|
|
1925
|
(After the
Amendment of IPC)
|
14 Years
|
|
1929
|
(After Passing
of Child Marriage
Restraint Act)
|
14 Years
|
|
1940
|
After the
Amendment of the I.P.C.
and Child Marriage Act
|
16 Years
|
|
1978
|
-
|
16 Years
|
|
2013
|
-
|
18 Years
|
Over time, this age of consent has
been kept on increasing by various legislation as shown in the above table.
Presently it has been increased to 18 in India.[7]
The effect of this is that if a female or male minor enter into a sexual
relationship with his/her counterpart, in case a complaint is filed, the other
one can be convicted of rape. It means, the consent given by a male or female
who is less than 18 years, does amount to no consent in the eyes of the law.
JURISPRUDENCE OF AGE OF CONSENT
The
subject of a minor's consent is delicate and contentious. Since these people,
who are typically classified as "children," lack fully developed
physical, mental, and emotional capacities, they are not regarded as having the
agency to make certain decisions or exercise certain rights. These might
include voting, possessing a firearm or a vehicle, engaging in sexual activity
or matrimony, bringing a legal action or signing a contract. Although the legal
majority/consent age may vary by jurisdiction, these restrictions are uniformly
applicable in all legal systems.[8]
The
preamble of the United Nations Child Rights Convention recognizes that the child, for the full and harmonious
development of his or her personality, should grow up in a family environment,
in an atmosphere of happiness, love and understanding.[9]
For the purpose of this Convention, a child means every human being below the
age of eighteen years unless under the law applicable to the child, the
majority is attained earlier. This refers to the fact that the idea of a legal
majority may be attained early. So, the jurisprudence of age of consent can be analysed
through various statutes such as Indian Penal Code, Indian Evidence Act, Child
Labour Act, Juvenile Justice Act and judicial pronouncements.
As per the
Indian Penal Code, a person below the age of 7, is considered to be incapable
of having a criminal intention.[10]
If someone is aged between 7 and 12, the culpability depends on whether the
child has sufficient maturity to understand and judge the nature and
consequences of his action on that occasion.[11]
All these establish the importance of chronological age in a criminal
trial. Thus, in criminal jurisprudence age of 18 is considered to be a
milestone for becoming an adult, and so is capable of taking decisions of
importance.
Even
though there exist court decisions, that discarded the chronological age, and
gave importance to the fact that a person is capable enough to understand the
consequences of his/her decision, and took decisions that are least expected or
far-fetched from what is directly mentioned in the statute. For example, in State v Akhilesh Harichandra
Mishra,[12] the
victim was 15 years old when she eloped and married the accused. They had a child before the trial was
completed. The accused was acquitted because the informant stated that the
couple was married and she had no grievances. The Special Court noted that the
matter had been compromised. It rejected the PP’s argument about consent being
irrelevant under the POCSO Act. The idea of mental age was
rejected by the Supreme Court of India, in Eera v State[13].
Considering the gravity of the offence committed against a woman who was
intellectually incapable of consenting, any reasonable person would argue that
the perpetrator should be tried under POCSO Act. But the court refused to
consider the mental age of the victim to be the deciding factor. Thus, some of
those below the (chronological) statutory age may be sexually mature, as might
some of those with a low mental age. If the legal fiction is sustainable in one
case, why not in the other?[14]
Similarly,
the Indian Evidence Act does not differentiate between a child witness and an
adult witness. As per section 118 of the Indian Evidence Act a person of any
age irrespective of whether they have turned major or not, can be a
competent witness if they are in a position to understand the question and are
capable of giving rational answers. It is the discretion of the court to decide
competency, and the discretion should be exercised judicially. No precise
age is fixed by law within which there is total prohibition. The competency is
not judged merely by age but by the degree of understanding possessed by him.
There is no rule regarding the degree of intelligence or knowledge which will
render a child a competent witness. The effect of such a section is that statements by a witness
with no statutory eligibility condition can affect another person’s right to
life and personal liberty, and this can have a lifelong impact on the affected
person. So a person with no particular age-related eligibility is considered
capable enough to affect another person’s life and liberty.
As per
Child Labour Act, a child i.e. person below the age of fourteen is allowed to
work only in the family business. The point to be noted here is that a child
below the age of 14 is considered capable of working, even though it is
qualified by certain industries, and adolescents (14 to 18 years of age) are
prohibited from working in hazardous industries, while they are also considered
capable of working, but they are not legally allowed to cast their vote or
secure a driving licence, because of other statutory prohibitions. These
prohibitions have no reasonable basis. Why should someone who is capable of
consenting to do a job in a non-hazardous industry be prevented from casting a vote
or signing a contract? Why should the idea of being capable of consenting for
work be extended to other capabilities? There is no logical reason for
discarding the idea of mental capacity to other fields of law including signing
a contract or consenting to a sexual act.
Section 15 of the Juvenile Justice (Care and Protection of Children)
Act, 2015 provides for preliminary assessment where the alleged offence is
heinous and where the child has completed or is above the age of 16 years, the
Board is required to conduct the preliminary assessment with regard to his
mental and physical capacity to commit such offence, ability to understand the
consequences of the offence and the circumstances in which he allegedly
committed the offence and after such assessment, pass an order. If the Board is
of the opinion that the child needs to be tried as an adult then the case will
be transferred to the Children's Court having jurisdiction to try such an
offence. Otherwise, the Board itself will proceed to try the matter as a
summons case under the Criminal Procedure Code, 1973.
All these principles and provisions point to the fact that the mental
capacity of a person may not be on equal terms with the chronological age.
Therefore, it is imperative to consider a person's mental age when determining
their legal majority rather than relying solely on their chronological age. And
this legislation recognises the importance of mental capacity to the extent
that other individual's lives are affected, or the offence committed by the
individual is an offence against the State. There is no reason for discarding
the idea of mental capacity, in legislation that deals with consent, as far as
the lives of other individuals are affected, sometimes to the extent of
affecting their bodily autonomy.
In India for both girls and boys, puberty begins between the
age of 8 to 14 years. It starts earlier in girls (around 11) as compared to
boys (around 12). The median ages of thelarche, pubarche and menarche
were 10.8 years, 11 years and 12.4 years.[15] If the
appropriate age for sexual activity were defined by physiological development,
then we could infer that earlier sexual activity is appropriate.[16]
So, children reach sexual maturity during adolescence. They undergo various and
significant changes in their transition to adulthood. Their experiences during this
transformative period have long-lasting effects that shape their adult lives.
However, the reform movements have not focussed significantly on physiological
factors and have argued for a higher age of consent. At the end of the 20th
century, the debates surrounding the age of consent gained prominence. UNCRC is
the result of these movements.
There is no mention of the age of
consent in UNCRC. But, it recognises the evolving capacity of adolescents,
defined as “an enabling principle that addresses the process of maturation and
learning through which children progressively acquire competencies.”[17]
The concept of evolving capacity of adolescents was also highlighted in the Teddy
Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional
Development and Another [18]
judgement of South Africa. In Vijayalakshmi v
State[19], the court observed that- it is now
well-evidenced that adolescent romance is an important developmental marker for
adolescents’ self-identity, functioning and capacity for intimacy.
Developmental-contextual theories of adolescent romantic stages also provide a
framework for how romantic relationships assist young adults with addressing
their identity and intimacy needs. Therefore, the age of adolescence as can be
seen evidently is one associated with an amassing change in the neurological,
cognitive and psychological systems of a person and one of the most important
aspects is that the individual tries to establish their identity, develops
emotional and biological needs during this period as a result of which the
individual tends to look for new relationships, bonding and partnership. It is
also important to acknowledge in addition to this, the vast exposure that is
available to adolescents and youth in the form of digital content that play a
major role in influencing their growth and identity. Therefore, the
jurisprudence of age of consent establishes the fact that a stringent age cap
with the age of consent cannot be justified when we analyse it through
legislation and judicial pronouncements.
The UNCRC defines a
‘child’ as a person below the age of 18 years unless the age of majority is set
lower by the laws of a country. It is no wonder then, that ranging from 12 in
Mexico to 18 in several states of the U.S.A, in Egypt, and India, the age of
consent for heterosexual sex varies widely across countries even today.[20]
These differences in age of consent are due to social, climatic, cultural, and
psychological factors but, almost every age line is arbitrary and incapable of
dealing with the complexity and diversity within age groups. Let us now look
into the age of consent and close in-age exemptions provided in various
countries.
Close in age exemptions in Canada
From 1890
to 2008 the age of consent in Canada was 14 years. In 2008, the criminal code
of Canada was amended and the consent for non-exploitative sexual activity is
now 16 years. Non-exploitative activity is defined as sexual activity that does
not involve prostitution or pornography, and where there is no relationship of
trust, authority or dependency between the persons involved. The spirit of the new legislation is not to
regulate consensual teenage sexual activity. To this effect, there are a few
notable exceptions to the law:[21]
1. Youths 12
or 13 years of age can consent to nonexploitative sexual activity with peers
when the age difference is no more than two years. For example, a 12-year-old
child is deemed capable of consenting to sexual activity with a 14-year-old,
but not a 15-year-old.
2. Youths 14
or 15 years of age can consent to nonexploitative sexual activity when the age
difference is no more than five years. For example, a 15-year-old can consent
to having sexual intercourse with a 20-year-old, but not with a 21-year-old.
Children younger than 12 years of age can never consent to sexual activity with
anyone, of any age, regardless of whether they say they do.
From the
above clauses, it is evident that the close-in-age exemptions are different for
different age groups. Therefore, persons under 16 years can have consensual sex
with someone close in age. These exemptions do not apply to persons who are in
a position of authority and this is included to prevent the misuse of law.
Romeo and Juliet laws of the USA
In the United States, the age of
sexual consent is regulated by state laws and it varies across the States.
These laws are often referred to as statutory rape laws and these are unique
because they result in a teen being the victim and a sex offender at the same
time. These laws intend to protect children from adult sexual predators and to
reduce teen pregnancies According to these Romeo and Juliet statutes, teenage
couples who have not achieved the age of consent may engage in sexual activity
without running the risk of being accused of statutory rape as long as the
proper guidelines are followed. Romeo and Juliet laws offer considerable
flexibility regarding the age of consent restrictions.[22]
In a typical circumstance, an older person who has sex with a minor may be
prosecuted with statutory rape. However, if the minor age is close to that
person’s age, a Romeo and Juliet law ensures that the older person won’t be
charged with this sex crime.
As of 2022,
26 states in the USA had Romeo and Juliet laws in place. Each state has its own
age of consent, and the states with Romeo and Juliet laws allow for sexual
relationships with minors if the older person is two to four years
older. For example, people in Minnesota and Washington State can have sex
with persons with a two-year age difference. In Tennessee
and Pennsylvania, that gap increases to four years. In the state of Texas
“Romeo and Juliet” laws generally refer to provisions in the law that provide
an affirmative defense to criminal prosecution in
consensual cases where both actors are similar in age. The law states that
anyone between the ages of 14 and 17 can legally give consent to someone within
three years of their age, so long as the other party is at least 14 and gives
his or her consent. There is no single “Romeo and Juliet” law, but several
sections of the Penal Code contain these kinds of provisions. These laws have
been used as defences in consensual sexual acts between minors thereby
preventing the criminalisation of romantic relationships.
Sexual Offences Act of 2003 of the UK
Half of all UK teenagers have their
first sexual experience by the age of 14, according to the National Survey of
Sexual Attitudes and Lifestyles. This experience includes intercourse, oral
sex, mutual masturbation and sexual touching. Under the Sexual Offences Act
2003, all these sexually active young teens are criminals and sex offenders.
They are lumped together with rapists and paedophiles.[23]
As per section 9 of the Sexual Offences Act 2003, the age of consent is 16
years. The low age of consent is adopted in the context of the high rate of
teenage pregnancies, and the increasing threat of HIV/AIDS to young people.
However, the fact that a significant number of children below the age of
consent suggest the possibility of re-examining the current law since the age
of consent remains high in the UK by the standards of Western Europe, where the
age of 14 or 15 is typical
The United
Kingdom does not have a close-in-age exemption. So, it is possible for two
individuals both under the age of 16 who willingly engage in intercourse
can be prosecuted for statutory rape. Similarly, no protections are
reserved for sexual relations in which one participant is a 15-year-old and the
second is a 16 or 17-year-old.
ROMANTIC RELATIONSHIPS
As per the Report by Enfold, the
romantic cases under POCSO Act have the following features:[24]
·
The “victim” expressly admits to being in or having
been in love with the accused or having consented to sexual activity with the
accused or willingly entered into a marriage with the accused;
·
“Victim’s” family members or other prosecution witness
states that the victim was in a “romantic” relationship with the accused at the
time of the offence;
·
The Special Court concludes that the “victim” was
having a love affair with the accused or was in a consensual relationship at
the time of the offence.
Several
criminal cases booked under the POCSO Act fall under this category. Of the total 7064 POCSO judgments
registered between 2016 and 2020 and available on e-courts from the states of
Assam, Maharashtra, and West Bengal, 1715 cases (24.3%) constituted “romantic”
cases.[25]
In the majority of romantic cases, the FIR was lodged by a family member
usually the parent of the victim. Another common trend observable across the
Studies was that romantic cases almost always resulted in an acquittal because
the victim either refused to testify against the accused or turned hostile,
denying that the alleged offence had ever taken place.[26]
Though the POCSO Act is
gender-neutral it’s the boys who get convicted in the majority of the cases. As
per the Enfold report on POCSO cases All “victims” in “romantic” cases were
girls (1715 cases) and in all but one case from Maharashtra, the primary
accused was male.[27]
In the majority of the romantic cases after the registration of FIR invariably
it’s the boy who gets arrested. This has severe impacts on the life and career
of the person who gets arrested. An adolescent
boy caught in a situation like this will surely have no defence if the criminal
case is taken to its logical end. Punishing an adolescent or minor boy who
enters into a consensual relationship with a minor girl by treating him as an
offender, was never the objective and intent of the POCSO Act. An adolescent
boy and girl who are in the grips of their hormones and biological changes and
whose decision-making ability is yet to fully develop should essentially
receive the support and guidance of their parents and the society at large.
These incidents should never be perceived from an adult’s point of view and
such an understanding will lead to a lack of empathy. An adolescent boy who is
sent to prison in a case of this nature will be persecuted throughout his life.
INTERPRETATION
OF CONSENT BY THE COURTS IN THE CONTEXT OF POCSO
Consent by a minor is not valid consent in the eyes of the
law. this aspect has been dealt with in detail under the jurisprudence of age
of consent. So, consensual sex between minors has been in a legal grey area.[28] The High Court of
Meghalaya in Smti. Ephina Khonglah v State of Meghalaya[29] case noted
that “On perusal of the records, particularly the statement of the victim and
the accused, prima facie it is apparent that there is a romantic relationship
between the two and that the sexual act involved between them was one of
consensual, notwithstanding the fact that in the case of an alleged victim
being a minor, consent has no legal validity, however, this aspect of the
matter cannot be lost sight of while a plea for grant of bail is being
considered by the court.” The Calcutta High Court in Ranjit Rajbanshi v The
State Of West Bengal And Others[30]
held that POCSO Act was enacted to protect innocent children from sexual
offences. However, a Draconian interpretation of the provisions thereof would
merely convert it into a tool of abuse of the process of law, instead of being
a protective shield against defenceless minors. Keeping in view the definition
of ‘child’ in Section 2(d) of the POCSO Act, even a person who is
aged 17 years and 364 days would qualify as a child, but her maturity would not
be much different from another person, who was just one day older than her,
that is, 18 years old. Thereby the Court highlighted the issue of the age of
consent being 18 years in India. The court further noted that the interpretation of a statute cannot be with eyes
closed to practical realities and have to be construed in proper perspective,
keeping in view the objects and reasons of the Act. Hence, while construing the
expression ‘child’ in an appropriate perspective, the age, maturity and other
circumstances also become relevant to clinch a case on the ground of
penetrative sexual assault.
In State of Assam v
Anjan Kumar Manjhi,[31] the
girl’s father lodged an FIR alleging that his 17-year-old daughter did not
return home and he suspected that the accused might have kidnapped her. The
girl went willingly with the accused and stayed with him as his wife in his
uncle’s house and engaged in sexual intercourse. The Special Court expressly
noted that she and the accused’s love affair “continued for 3 years and that on
her sweet will she fled away with the accused to Bihar” and also that the
accused made sexual intercourse with her due consent. The Special Court noted
that the girl declared that she does not desire the accused person to be
punished. However, it held that the girl’s consent was immaterial. It placed
reliance on the Supreme Court’s decision on Independent Thought v Union of
India[32] and
concluded that the POCSO Act is enacted for the protection and welfare of the
child. For committing penetrative sexual assault consent of the girl is
immaterial. The offence committed in this instant case is against the State and
as such the accused cannot go unpunished. The accused was sentenced to rigorous
imprisonment of six months under Section 363, IPC and rigorous imprisonment of
seven years and a fine of Rs 1000 and two months simple imprisonment in default
of payment of fine under Section 4, POCSO Act.
Therefore,
the aforementioned case laws show that the courts have highlighted the issues
associated with consent in romantic cases. Though courts admitted to the
consent given by the victim but subjected the accused to the punishment under
various provisions of the POCSO Act.
CHALLENGES POSED BY “ROMANTIC CASES”
The romantic cases
constitute a significant number of cases filed under the POCSO Act. In these
cases, the justice system was triggered not to fight the sexual offence or
sexual abuse. The might of the criminal justice system was instead invoked more
often to control and deter girls from being in relationships against the wishes
of their families, and to coerce the girls to return home if they had eloped.
In the majority of the cases, the girls admitted to the consensual relationships
and did not testify against their partners before the special courts.[33]
An overwhelming majority of cases ended in acquittal, principally because the
girls did not say anything incriminating against the accused person. Family
members also backed down at the evidence stage and expressed that they had
accepted the relationship or marriage and did not want any action to be taken
against the accused. Convictions were recorded only in exceptional cases and
acquittals were the norm in “romantic” cases.
Due to fear of
criminalisation of romantic relations, the vulnerable children avoid availing
of necessary medical and health care facilities thereby leading to unwanted
pregnancies and an increase in sexually transmitted diseases. In 2017, an estimated 11.8 million teenage pregnancies
occurred in India.[34]
In the case of Teddy Bear Clinic for Abused Children v Minister
of Justice and Constitutional Development, the court held that the statute
was inherently contradictory to the extent that it treated children as incapable
of making sexual choices, but capable of criminal responsibility for
sexual acts. This aspect can be seen in the context of the POCSO Act as the
statute impose criminal responsibility for sexual acts.
The other major problem
that arises due to the criminalisation of romantic relationships is child
marriages. In many countries, child marriages are the result of attempts to
prevent the imprisonment of the older partner for statutory rape.[35]
This was highlighted in the enfold report. The parents who file the FIR later
deny giving testimony against the accused. Therefore, the laws aiming to
prevent child marriages without a close-in-age exemption may cause the
prosecution of adolescent couples who engage in consensual sexual activity when
both partners are significantly close in age to each other, and one or both
partners are below the age of consent.[36]
Therefore, the criminalisation of romantic relationships is the result of a
lack of close-in-age exemptions in India.
The evolving capacities
and sexual autonomy of adolescents need to be balanced with the responsibility
of the State to protect children from sexual abuse.[37]
While POCSO Act has tried to follow the latter but it has ignored the former.
Hence, the law needs to be amended in order to recognise the evolving capacity
of teenagers. While dealing with romantic cases the courts have suggested the
legislatures look into the issue and also opined that the law needs to evolve
with the changing times. During the enactment of the POCSO Act, the National
Commission for Protection of Child Rights (NCPCR) suggested that the age of
consent in the IPC (16 years) before the Criminal Law (Amendment) Act, 2013, be
retained, so that teenage relationships and consensual sexual activity are not
criminalised.[38] The
commission also suggested for close-in-age exemptions, which would protect
consensual non-penetrative sexual acts between two children above 12 years of
age who are either of the same age or within two years of each other and
consensual penetrative sexual acts between children above 14 years who are
either of the same age or within three years of each other.[39]
The close-in-age exemptions do exist in various jurisdictions across the world
as discussed earlier. The age of consent in the UK is 16 years but the Sexual
Offences Act 2003 does not provide for any exemptions. Whereas in USA and
Canada, the statutes have close age exemptions provisions to avoid
criminalisation of consensual relationships.
These
close-in-age exemptions are not fool proof. They too can be misused. The
consent given by a teenager may not be well-informed. Investigators studying
adolescent sexuality have identified a multiplicity of factors beyond sexual
desire and love that lead teenagers to consent to sex. Among these are fear,
confusion, coercion, peer pressure, and a desire for male attention.[40] Because of these susceptibilities, adolescent
girls often strike "painfully one-sided" bargains, appearing to
consent to sexual activity under circumstances difficult for adults to
understand. Thus, in many circumstances, a girl's consent falls into the grey
area that lies between mutually desired, pleasurable sex and rape. As per Oberman intimidation, acquiescence,
adolescent naivete and silence "contribute to the problem of nonvoluntary,
yet 'consensual' sex among adolescents.[41]
But these laws if incorporated within
POCSO Act can uphold the choices and dignity of teenagers and respect their
Right to privacy which is inherent within the right to Life under Article 21 of
the Indian constitution. While upholding
the choice of the teenagers and recognising the evolving capacity of the
children these provisions would prevent the criminalisation of consensual
sexual relations.
The legislature appears to have adopted a conservative stance by
arbitrarily setting the legal age of consent at 18, completely ignoring the
fact that adolescents are going through a process of maturation and
self-discovery and that as part of this process, they will inevitably make
sexual decisions. The POCSO Act has many negative effects on adolescents since
it ignores their right to sexuality and arbitrarily sets the legal consent age
at 18. By not recognizing the right to the sexuality of adolescents and
mechanically fixing the age of consent at 18 years, the law leads to many
harmful consequences for adolescents as discussed in the write-up. Therefore,
the criminalisation of romantic relationships has led to the further
exploitation of teenagers’ exploitation by unprofessional and illegal elements
of society. They become vulnerable to diseases, unwanted pregnancy, and trauma.
Further, due to a pervasive silence about sexuality, adolescents do not get the
right advice from parents, teachers, or medical professionals, instead, they
have to take recourse to available information which is more often than not
distorted, like pornographic material or peer group.
Therefore, the law must recognize that adolescents have sexual relations
and must not criminalize consensual sexual relations between adolescents.
However, at the same time, the law must also be cognizant of the state’s duty
to protect them from exploitation. The legislature has to keep pace with the
changing societal needs and bring about necessary changes in law and more
particularly in a stringent law such as the POCSO Act. In such a case, we can
borrow close-in-age exemptions used in Canada and the USA. Thus, these
exemptions would ensure realising the objectives of the POCSO Act which is also
in the best interests of our children and adolescents.
BIBLIOGRAPHY
STATUTES
·
Protection of
Children from Sexual Offences Act, 2012.
·
Indian Penal Code, 1860.
JUDICIAL DECISIONS
INDIA
·
Queen-Empress v
Hurree Mohun Mythee (1891) ILR 18 Cal 49.
·
Independent Thought v Union of India
(2017)10 SCC 800.
·
State v Akhilesh Harichandra Mishra Spl. C. No.
165 of 2015 decided on 28.01.2016 (Thane) in Maharashtra Report, p.82.
·
Eera v State (2016) SCC OnLine SC 1678.
·
Vijayalakshmi v State [1] (2021) SCC OnLine Mad 317.
·
Anant Janardhan Sunatkari v State of Maharashtra (2021) SCC OnLine
Bom 136.
·
Smti. Ephina Khonglah v State of Meghalaya (2021) SCC OnLine Megh 228.
·
Ranjit Rajbanshi v The State Of West Bengal And Others SCC
OnLine Cal 2470.
·
State of Assam v Anjan Kumar Manjhi, POCSO Case No. 12/2018 decided on 23/09/18 by the
Special Court in Karbi Anglong (Assam).
SOUTH
AFRICA
·
Teddy Bear
Clinic for Abused Children and Another v Minister of Justice and Constitutional
Development and Another 2014 (2) SA168 (CC).
BOOKS
·
Matthew Waites, The Age of Consent: Young People,
Sexuality and Citizenship (1st edn, PALGRAVE MACMILLAN 2005).
JOURNAL ARTICLES
·
Khadgawat, R., Marwaha, R., Mehan, N. et al. Age
of onset of puberty in apparently healthy school girls from northern
India. Indian Pediatr 53, 383–387 (2016).
·
AGNES, FLAVIA. “Controversy over Age of Consent.” Economic
and Political Weekly, vol. 48, no. 29, 2013, pp. 10–13.
·
Steven Bellemare, MD, Age of consent for sexual activity in
Canada, Paediatrics & Child Health, Volume 13, Issue 6,
July/August 2008, Page 475.
·
Victoria
Simpson Beck & Stephanie Boys, 'Romeo & Juliet: Star-Crossed Lovers or
Sex Offenders' (2013) 24 Crim Just Pol'y Rev 648.
·
Michelle
Oberman, 'Regulating Consensual Sex with Minors: Defining a Role for Statutory
Rape' (2000) 48 Buff L Rev 703.
·
Kanbur,
Nuray. "Close-in-age exemption laws: focusing on the best interests of children
and adolescents" International Journal of Adolescent Medicine and
Health, vol. 33, no. 2, 2021, pp. 20180143. https://doi.org/10.1515/ijamh-2018-0143.
ONLINE RESOURCES
·
Implementation
of the POCSO Act, 2012 by Special Courts: Challenges and Issues, CCL-NLSIU,
with support from Tata Trusts (CCL-NLSIU Report).
·
Arushi G, “Navigating Through 'Age' and
'Agency' in Eera v. State ?” 14 Socio-Legal Review
<https://www.sociolegalreview.com/archives> accessed April 29, 2023.
·
Huffingtonpost,
25 January 2009)< https://www.huffingtonpost.co.uk/peter-g-tatchell/age-of
consent_b_4314619.html> accessed 03 May 2023.
·
Implementation
of the POCSO Act, 2012 by the Special Courts: Challenges and Issues Centre for
Child and the Law-NLSIU’s Studies on the Working of Special Courts in Five
States (2018); https://bit.ly/2vuJwt1.
·
National
Crime Records Bureau, Crime in India 2021 Chapter 4A.9.
·
child-rights-convention
(UNICEF, )<https://www.unicef.org/ /convention-text.
·
“Romantic”
Cases under the POCSO Act An Analysis of Judgments of Special Courts in Assam,
Maharashtra & West Bengal, Enfold Trust, in collaboration with UNICEF.
·
Pallavi
Polanki, Time to Lower Age of Consent for Sex? National Child Rights Body
Thinks So’(FIRSTPOST (March 6,
2013)<http://www.firstpost.com/india/time-to-lower-age-of-consentfor-sex-national-child-rights-body-thinks-so-650471.html>
accessed 30 April 2023.
·
UNICEF,
20 Years of the Convention on the Rights of the Child- Are You Old Enough?
<https://www.unicef.org/rightsite/433_457.html> accessed 01 May 2017.
·
Prachi Sharma and Dr. Nisha Sharma ‘What Contributes To Teenage
Pregnancies In
India?’<https://feminisminindia.com/2021/01/19/what-contributes-to-teenage
pregnancies-in-india> accessed 02 May 2023.
[1] Protection of Children from Sexual
Offences Act 2012, s 2(1) (d).
[2] AGNES, FLAVIA. “Controversy
over Age of Consent.” Economic and Political Weekly, vol. 48, no. 29, 2013, pp.
10–13. JSTOR, http://www.jstor.org/stable/23528498. Accessed 18 May 2023.
[3] National Crime Records Bureau,
Crime in India 2021 Chapter 4A.9.
[4] Implementation of the POCSO Act, 2012 by the Special
Courts: Challenges and Issues Centre for Child and the Law-NLSIU’s Studies on
the Working of Special Courts in Five States (2018).
[5] (1891)
ILR 18 Cal 49.
[6] Independent Thought v. Union of India (2017)10 SCC
800
[7] Protection of Children from Sexual
Offences Act 2012, s 2(1) (d).
[8] Implementation of the POCSO Act, 2012 by Special
Courts: Challenges and Issues, CCL-NLSIU, with support from Tata Trusts
(CCL-NLSIU Report).
[9] child-rights-convention (UNICEF,
)<https://www.unicef.org/ /convention-text.
[10] Indian Penal Code 1860, s 82.
[11] Indian Penal Code 1860, s 83.
[12] Spl. C. No. 165 of 2015 decided on
28.01.2016 (Thane) in Maharashtra Report, p.82.
[13] (2016)
SCC OnLine SC 1678.
[14] Arushi G, “Navigating Through
'Age' and 'Agency' in Eera v. State ?” 14 Socio Legal Review
<https://www.sociolegalreview.com/archives> accessed April 29, 2023.
[15] Khadgawat, R.,
Marwaha, R., Mehan, N. et al. Age of onset of puberty in
apparently healthy school girls from northern India. Indian Pediatr 53,
383–387 (2016).
[16] Matthew
Waites, The Age of Consent: Young People, Sexuality and
Citizenship (1st edn, PALGRAVE MACMILLAN 2005).
[17] Committee on the Rights of the Child general comment
No. 7 on Implementing Child Rights in Early Childhood (2005), para.17, , http://www2.ohchr.org/english/bodies/crc/docs/
AdvanceVersions/GeneralComment7Rev1.pdf
[18] 2014 (2) SA168 (CC).
[19] (2021) SCC OnLine Mad 317.
[20] UNICEF, 20 Years of the Convention on the Rights
of the Child- Are You Old Enough? https://www.
unicef.org/rightsite/433_457.htm (Last visited on May
1, 2017).
[21] Steven
Bellemare, MD, Age of consent for sexual activity in Canada, Paediatrics & Child Health, Volume 13, Issue 6,
July/August 2008, Page 475.
[22] Victoria Simpson Beck & Stephanie Boys, 'Romeo
& Juliet: Star-Crossed Lovers or Sex Offenders' (2013) 24 Crim Just Pol'y
Rev 648.
[23] Peter Tatchell, ‘The Current Age of Consent of 16 Doesn't
Protect Young People, It Criminalises Them’
huffingtonpost, 25 January 2009)<
https://www.huffingtonpost.co.uk/peter-g-tatchell/age-of
consent_b_4314619.html> accessed 03 May 2023.
[24] “Romantic” Cases under the POCSO Act An Analysis of
Judgments of Special Courts in Assam, Maharashtra & West Bengal, Enfold
Trust, in collaboration with UNICEF.
[25] Enfold report.
[26] CCL-NLSIU, Study on the Working of Special Courts
under the POCSO Act, 2012 in Andhra Pradesh (2017), p.64,
https://www.nls.ac.in/ccl/POSCOAP2017study.pdf
[27] Enfold report.
[28] (2021)
SCC OnLine Bom 136.
[29] (2021) SCC OnLine Megh 228.
[31] POCSO Case No. 12/2018 decided on
23/09/18 by the Special Court in Karbi Anglong (Assam).
[32] (2017) 10 SCC 800 (Supreme Court).
[33] Enfold report.
[34] Prachi Sharma and Dr. Nisha Sharma ‘What Contributes To Teenage
Pregnancies In India?’(Feminism in India, 19 January 2021)
<https://feminisminindia.com/2021/01/19/what-contributes-to-teenage-pregnancies-in-india/>
accessed 02 May 2023
[35] Kanbur, Nuray. "Close-in-age
exemption laws: focusing on the best interests of children and
adolescents" International Journal of Adolescent Medicine and Health,
vol. 33, no. 2, 2021, pp. 20180143.
[36] Ibid.
[37] CCL-NLSIU Report.
[38] Pallavi Polanki, Time to Lower Age of Consent for
Sex? National Child Rights Body Thinks So’(FIRSTPOST (March 6, 2013)http://www.firstpost.com/india/time-to-lower-age-of-consentfor-sex-national-child-rights-body-thinks-so-650471.htmlaccessed April 30, 2023).
[39] NCPCR, Protection of Children from
Sexual Offences Bill, 2010, exceptions to Clause 3.
[40] Michelle Oberman, 'Regulating Consensual Sex with
Minors: Defining a Role for
Statutory
Rape' (2000) 48 Buff L Rev 703.
[41] ibid
Article Information
POCSO ACT 2012: AGE OF CONSENT AND THE CRIMINALISATION OF ROMANTIC RELATIONSHIPS.
Authors: BASANAGOUDA M PATIL
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/12/20
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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