Open Access Research Article
RESTRUCTURING THE AGE OF CRIMINALITY OF JUVENILES
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Article Details
RESTRUCTURING THE AGE OF CRIMINALITY OF JUVENILES
Authored
By- Disha Singh
L.L.M.
(Criminology)
Galgotias
University
INTRODUCTION
A
“juvenile is a human who is under the age of 18 years. But in India,
here is considered to be the child’s physical or the chronological age, where
the mental age is not considered. The Supreme Court judgment in case of Ms.
Eera, through Dr. Manjula Krippendorf vs State (Govt. Of NCT of Delhi) and Ors., where the question arose was "whether
the word age in POCSO Act only includes physical age
and not the mental age?” it held that “the sanguine purpose of the act is to
safeguard the interest and well-being if the children at every stage of
judicial proceeding. On reading the act, it is clear that it is gender neutral.
In such a situation, to include the perception of mental competence of a victim
or mental retardation as a factor will, really tantamount to causing violence
to the legislation by incorporating a certain words to the definition. By
saying “age” would cover “mental age” has the potential to create immense
anomalous situations without there being any guidelines or statutory
provisions.” Therefore, the statement by the SC clearly put the concept of
using the mental age of a child for treating the child as a victim out of the
question.
Recently in an interview,
the current Chief Justice of India, Hon’ble Justice D. Y. Chandrachud, in a meeting made a recommendation
about revisiting the age of juveniles as the court treats all the relationships
among the minors as an offence under the POCSO Act, but the real question is
put in front of the court when the minors are in a consensual romantic relationship. At this time, the question for “age of consent” is
considered very viable and has been a grey area for the judiciary, as The
"age of consent" been increased from sixteen to eighteen thanks to
the POCSO Act. Due to this rise, it is now unlawful to get involved in consenting
sexual activity with a minor as one of the partners.
The goal of the act, Prevention of Children from Sexual
Offences Act, (hereinafter referred to as “POCSO” Act) to criminalize all
sexual Regardless of whether consent is truly present among the kids, it is
still illegal for acts to be performed on individuals under the age of 18 because it is presumed by law
that those under 18 are not of legal age to consent. This
further casts doubt on the judiciary, as being in a consensual romantic
relationship in the current era does not constitute an offense; thus, it leaves
a larger blank space in the area of age of consent for minors, as the entire
raising of the age limit is based on the assumption.
The statement of the CJI was answered by our government in
the negative, as they believe it is for the benefit of the minors; therefore, the denial by the parliament has put more of
the burden on the judiciary.
THE ISSUES WITH CHANGING THE “AGE OF CONSENT”
There can be a few problems that
might be considered as the reasons for going against the advice of the
judiciary.
1.
Tool to Control a Consensual Sexual Relationship: The root of the
issue is that the POCSO criminalizes both exploitation of young people's bodies and their
general sexual expression.
As a result,
criminal law has evolved into a tool to control or stifle a non-exploitative,
voluntary, consenting sexual relationship between two adolescents.
2.
Desexualizes Minor Girl: Throughout colonial times, there have
been numerous revisions to the laws governing adolescent sexuality. The 2013
revision raised the age of consent from 10 to 12, then from 14 to 16 to
finally 18 years old in order to bring it into compliance with the Act, which
had just been passed at the time. The legislation desexualizes young women by
ignoring the potential that they may engage in sexual conduct voluntarily. As
previously stated, it is predicated on the notion that any person below the age
of 18 lacks mental maturity which is required by law.
3.
Ignores Social Reality: The law makes all the adolescent sexuality
a crime and therefore, either it ignores or attempts to disregard social realities. According to some surveys, there an approximately 39% of females
encounter their first sexual act before they attain
the age of 18.
4.
Burdens Overburdened Courts:
According to the NCRB report, “Crime in India 2021, the number of
juveniles (especially those between the ages of 16 and 18) apprehended under
the POCSO Act in the country has seen a staggering jump of 180% between 2017- 2021,
according to the National Crime Records Bureau’s report, ‘Crime in India 2021’.
Criminalising underage sexuality (25% of total POCSO cases) burdens the
already-overburdened courts thereby clogging up the criminal justice machinery
even more.”
5.
Impairs the Privacy of the Victim: Legislators should pay
attention to the collective victimisation of the "consenting" girl.
The Child Marriage Act, POCSO, and MTP (Medical Termination of Pregnancy) Act
combine to form a complicated socio-legal web that denies minor girls their
rights to privacy, the dignity of sexual and reproductive life. As a result of
the established societal stigma, she is unable to use the available government
assistance because it restricts her rights and makes her aware.
All these factors provide
for general reasons for not considering the change in the “age of consent”.
Another reason, that plays one of the major roles in it is the “society”. The world we live in has provided us
with the ability to live by following a few provided rules, which are the moral
high grounds that people must accept in order to live as members of society.
THE VIEWS OF JUDICIARY ON RESTRUCTURING THE AGE OF CONSENT
The view of judiciary is based on the
question of “age of consent” for the minors, as there are many aspects to keep
in check. “The Madras, Delhi, and Meghalaya High Courts' opinions, which have
accumulated as a result of being flagged with the issues concerning the
criminalization of romantic relationships between or with an adolescent under
POCSO, are what led the Chief Justice of India to address concerns about the
age of consent under the POCSO Act by a message to Parliament.”
In?AK
v. State Govt of NCT of Delhi, the Delhi High Court,?stated that “the
intention of POCSO was to protect children below the age of 18 years from
sexual exploitation and not to criminalise romantic relationships between
consenting young adults.”
In another recent case, the Madras
High Court said that “it was ‘eagerly’ waiting for the legislature to reduce
the age of consent under the POCSO Act from the current 18 years, as it upheld
the conviction of a man sentenced to seven years imprisonment for having
kidnapped and repeatedly raped a 17-year-old girl.”
The Madras High Court questioned
whether it was wise to make such acts crimes in the case of Vijayalakshmi V. State Rep.,
Inspector of Police. The same high court recommended that the age of
consent be increased to 16 years in the case of Sabari V. Inspector of Police as
well.
Other High Courts that share the
Madras HC's viewpoint are those in Assam, Bombay, and Karnataka.
REPORTS ON “AGE OF CONSENT”
A few surveys have been conducted by
the NGOs and the government authorities for provide statistics that the laws
which were embarked to protect and preserve the innocence of the child are
being misused against them only.
The report of Enfold Proactive Health
Trust, a Bengaluru-based NGO, assessed such "romantic cases"
registered under the POCSO Act in West Bengal, Assam, and Maharashtra between
the years 2016 and 2020. Enfold Proactive Health Trust collaborated with UNICEF
India and UNFPA (United Nations Population Fund) on the study.
A different study found that between
2016 and 2020, "romantic cases" accounted for 24.3% of all POCSO
cases, and 80.2% of these cases were submitted by the girl's parents or other
close family members.
The year of 2018 saw the completion
of yet another study by the National Law School of India University's Centre
for the Child and the Law (CCL-NLSIU) revealed that “romantic cases constituted
21.2% of cases in Andhra Pradesh, 15.6% in Assam, 21.5% in Delhi, 21.8% in
three districts of Karnataka, and 20.5% in Maharashtra.”
The Special Courts established for
cases under the POCSO Act, as well as in the S. Varadarajan case,
make no mention of the girls being "induced" or "coerced"
into having sexual intercourse in their rulings. The ladies were on the edge of
becoming adults, and their educational background, along with the environment
in Mumbai and throughout the states, suggests that they knew what they were
doing. It can be blamed on the technological advancement of the children at a
very young age that make them aware of all the things.
Therefore, from the above decisions
of the judiciary and the studies of shows that the we can treat a person as a
child when he or she is below the age of 18 but we can restrict them from a
romantic relationship between, when they are aware of nature of the
relationship as well as the consequences. It is not to be assumed that all
relationships of the minors are romantic or consensual, but it will depend on
the situations of each of the case, but we cannot let every relationship
between people below the age of 18 years as an offence.
It is the responsibility of society,
family, and educational institutions to teach children the difference between
good and bad touch so that they are aware of all potentially harmful acts. But
it is also the duty of society to accept the relationships of the people under
the said age of minority, as everyone has a right to a respectable life in
society.
According to “the Justice Verma
Committee Report on the interpretation of Article 34 of the UNCRC, the POCSO
Act's age of consent should be lowered to sixteen in order to benefit society.”
This is because the POCSO Act will be more beneficial to society if the age of
majority is lowered from 18 to 16 years old, depending on the mental maturity
of the individuals, as it stated that “it
was aimed inter alia to protect children from sexual assault and abuse and not
to criminalize consensual sex between two individuals even if they are below
eighteen years of age.”
In the world’s society as a whole,
there are several nations like Japan where the legal consent age is set at 13,
as opposed to Italy, Hungary, Germany, Austria, and Portugal where the legal
consent age is set at 14. The most significant connection between these nations
and India is that both respect teenagers and do not treat them like children,
recognizing that they are capable of making their own decisions. But in India,
it is the tendency of the majority of nation to underestimate the
decision-making process of teenagers and their subsequent refusal to
communicate with the children about “subjects inappropriate for their age”
which outcomes in cases where the youngsters fall as the victim either to an
unjust law or to unspeakable evil.
What should be emphasized is that the
legal age at which a person is considered capable of making decisions is not
the same as the actual age at which an adolescent becomes capable of making
decisions for themselves. There has been a drift between the two causes, as we
cannot be assured that a person will be mentally and psychologically mature and
more aware of their actions, after the age of 18, therefore, the friction
between these two, sometimes end up in gross injustice for the young adults. It
is wrong to accuse them of a crime for what they did, especially if they were
having a consensual relationship with another teenager.
As a result, it is becoming more and
more necessary to re-evaluate the POCSO Act's age restriction, especially in
situations where there are intimate relationships between minors. The minors
won't have to go through the agony of being accused of sexual offences for
their otherwise consensual acts, and this will help to ensure that they are not
criminalized for their adolescent behaviours.
REFERENCES
1.
AIR 2017 SC 3457.
2.
Maharukh Adenwalla and Prakriti Shah “Age of Consent” Under the POCSO Act, available at: https://www.scconline.com/blog/post/2023/03/12/age-of-consent-under-the-pocso-act/
3.
2022 Live Law (Del) 1077.
4.
Ramakrishnan & Raha, “Romantic” Cases under the POCSO Act
Enfold Proactive Health Trust: 2022.
5.
S. Varadarajan v. State of Madras, (1965) 1 SCR 243.
6.
“International Institute of Population Sciences, National Family
Health Survey 4, India.pdf. 2015” available at:
.https://www.scconline.com/blog/post/2023/03/12/age-of-consent-under-the-pocso-act/
Article Information
RESTRUCTURING THE AGE OF CRIMINALITY OF JUVENILES
Authors: Disha Singh
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/12
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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