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THE CONFLICT BETWEEN A MINOR’S RIGHT TO PRIVACY AND BODILY AUTONOMY: A CRITICAL ANALYSIS OF THE POCSO ACT, 2012
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THE
CONFLICT BETWEEN A MINOR’S RIGHT TO PRIVACY AND BODILY AUTONOMY: A CRITICAL
ANALYSIS OF THE POCSO ACT, 2012
AUTHORED BY - ANDREA MIRIAM STANLEY
Abstract:
The Protection of Children from
Sexual Offenses (POCSO) Act, a comprehensive legislative structure created to
protect minors from sexual abuse, has drawn appreciation for its intended
purpose of safeguarding children. However, the ambitious objectives of the act
clash with a minor's right to privacy and bodily autonomy. This paper provides
an in-depth study of the issues at play in this discussion, as well as the
importance of developing a thoughtful plan to protect children without
jeopardising individual freedoms. The POCSO Act includes procedures that may
breach a child's right to autonomy and confidentiality, such as statement
recording, medical examinations, and the legally enforceable requirement to
reveal information about any sexual conduct with a minor. Adolescents' sexual
behaviour is frequently restricted by law. A number of these issues make it
difficult to criminalise relationships between adults and adolescents that are
consensual, such as the inconsistent execution of laws based on arbitrary age
limits, and the paucity of legal solutions to problems that are more societal
than criminal in nature. Due to their disapproval of the relationship between
the children, which is mostly driven by prejudices instigated by the community,
the guardians of the children typically file fabricated complaints in these
cases. It skilfully draws attention to the dichotomy between the POCSO Act's
primary intent of protecting adolescents from sexual exploitation and its
potential for overreach when its limitations are applied to romantic
relationships between minors. It highlights the significance of preserving a
careful balance between upholding individual rights and safeguarding children
while we seek to build a just and empathetic community.
Keywords: Adolescents, minors, sexual abuse,
right to privacy, right to bodily autonomy, consensual relationships
INTRODUCTION:
In an attempt to address an upward
trend in child sexual abuse cases, the Parliament established the Protection of
Children from Sexual Offences Act (POCSO) in 2012. Before the current
legislation was implemented, engaging in sexual activity with a woman under the
age of eighteen was considered statutory rape and was criminalised under
Section 375 of the Indian Penal Code, 1860. Unlike the IPC, which views rape as
a crime to one gender, the POCSO Act safeguards all children regardless of
their gender. According to the law, a "child" is any individual who
is under the age of eighteen. Interestingly enough, while determining
culpability for any of its offences, the POCSO Act makes no reference of
"consent" or the absence of it. This is because children are
incapable of conveying informed consent to sexual activity since they lack the
maturity and agency necessary to comprehend the possible repercussions of doing
so. POCSO defines a child as someone under the age of 18.[1]
It was a step towards safeguarding
minors, with a contemporary approach. The statute has flaws, though, leaning it
toward the non-progressive side. Regardless of whether the sexual act was that
of voluntary consent, the law states that any sexual contact with, any
individual under the age of 18 qualifies as rape. Article 12 of the United
Nations Convention on the Rights of the Child (UNCRC), 1989 states that a child
has the right to be heard, and this goes against the principle of a minor's
organic and physical development. Globally, the "evolving capacities of
the child" are given prominence under this Convention.[2]
Critics have asserted the significance of imparting youngsters the liberty to
make independent choices and the freedom to discover their sexuality. There are
no gender restrictions when it comes to starting an intimate relationship; both
partners have to offer their consent. However, the act's gender-neutral
principle is frequently disregarded. Irrespective of the boy's age, girls would
typically be perceived as the innocent party and legal action would be taken
against him. However, when grooming is employed as a strategy in cases where
the victim holds a position of trust it becomes challenging to determine the
extent of psychological manipulation exerted by the perpetrator, on the victim.[3]
This raises a contentious debate, in our society; whether consent given by a
minor before reaching the age of 18 is valid?
RESEARCH PROBLEM:
The clash between the POCSO Act and
the rights of minors to privacy and bodily autonomy sparks a contentious
ethical and legal predicament. While designed to shield adolescents from sexual
exploitation, the POCSO Act’s implementation may potentially infringe upon
their fundamental rights. The Act mandates the reporting of sexual offences
against minors, backed by legal consequences for non-compliance. Moreover,
medical practitioners are obligated to notify authorities if a minor seeks a
termination of pregnancy. These provisions might induce shame and apprehension
in victims, especially if the relationship was consensual and they fear
repercussions for their partner. A child confides in the people they trust the
most, hoping that confidentiality will not be breached. Since the Act imposes a
legal obligation on the medical practitioners or any other person having such
information to report it, it leads to the dilemma between getting penalized or
violating the minor’s right to privacy. Striking a balance between safeguarding
victims and ensuring justice becomes intricate. The Act’s treatment of
consensual relationships as criminal, disregarding a minor’s consent, restricts
adolescents; sexual agency and autonomy. This necessitates divulging personal details
and conducting medical procedures that. Infringe on privacy and restrict bodily
autonomy, even in consensual relationships. The guardians of the minor falsely
file the majority of such cases because they disapprove of the association,
which is primarily based on social prejudice. It astutely highlights the
conflict between the POCSO Act’s primary objective is to shield children from
sexual exploitation and the potential overreach of its provisions when applied
to romantic relationships among minors.
RESEARCH
OBJECTIVES:
1. To assess
the provisions of the Protection of Children from Sexual Offences Act, 2012.
2. To examine
the lacunae in the POCSO Act, 2012.
3. To analyse
the effect of this Act on minors’ right to privacy and bodily autonomy under
Article 21 of the Indian Constitution.
4. To
investigate the correlation between conviction rates under this Act and those
cases falling under the category of romantic relationships.
RESEARCH
QUESTIONS:
1. Whether the
provisions of the POCSO Act, 2012 infringe upon the privacy and bodily autonomy
rights of minors?
2. What are
the reasons for the low conviction rates of offenders under the POCSO Act?
3. Is there
any effect on consensual or romantic relationships due to this Act?
RESEARCH
METHODOLOGY:
The researcher has adopted a
doctrinal method of research. The aims and objectives are exploratory. The data
has been collected from primary sources such as statutes and cases, as well as
secondary sources like journals, treatises, digests, and law reports.
MODE OF
CITATION:
The mode of citation used by the
researcher in this paper is Bluebook 20th Edition.
The reporting of offences is
regulated under Section 19 of the Act. Individuals must disclose incidents in
which there is a plausible suspicion that a POCSO Act violation may have
occurred or where knowledge exists that a violation has already occurred. Such
information must be reported to the Special Juvenile Police Unit or the local
police.[4]
However, the fear of the filing of a formal police complaint prevents many
children, teenagers, and their families from receiving the help they need,
posing an impediment to securing protection. However, since failing to comply
with the statutory reporting requirement could result in being imprisoned,
medical professionals are hesitant to terminate pregnancies without first
filing a police complaint.[5]
Although the POCSO Act was designed
to safeguard children, it may cause the identify and personal details of the
minor to be revealed. This may result in social stigma and solitary existence,
which can be particularly harmful when a family member or someone in the
child's close social circle abuses them. Consensual sexual behaviour between
minors is prohibited, and this will have disastrous effects for the adolescents
involved. Even if the person is acquitted for the crime under this Act, they may
face the stigma of being labelled as a sex-predator, or the possibility of
having a criminal record, which will follow them for the rest of their lives.[6]
For example, when determining whether or not a person is competent to consent
to sexual activity, Canada considers their age, level of consciousness, and
cognitive ability. India's judicial system is unique, nevertheless. The legal
situation is simple: if a woman is a minor, her consent to any sexual activity
is insignificant or irrelevant. The rising cases demonstrate how rampant sexual
engagement is among individuals during their adolescent years.
The Supreme Court ruled in
Independent Thoughts v. Union of India that Exception 2 of Section 375 IPC,
which exempts sexual intercourse with a female below the age of 15 from being
constituted rape, is contrary to the welfare and interests of the female
adolescent.[7] The court reasoned that this provision
establishes an arbitrary difference between a married girl-child and an
unmarried minor, which is draconian and violates the Indian Constitution's
fundamental rights to equality, non-discrimination, life, and private liberty.
As a result, the court invalidated this exception. [8]
The Allahabad High Court ruled in
Payal Sharma alias Kamla Sharma v. Superintendent that although living together
before marriage may be viewed as immoral by society, it is not against the law.[9]
Law and morality do not always have to be two sides of the same coin. These
decisions serve as a benchmark for the liberal interpretation of the rights to
equality, privacy, and individual freedom established by the constitution.
Instead, they have made patriarchy more entrenched and given young females a
suppressed voice when it comes to making decisions. Every person who reaches a
certain age has the right, with the other party's absolute and free consent, to
get married and start raising a family on their own, without having to
encounter any discrimination on the basis of race, nationality, or religion,
according to Article 16 of the 1948 Universal Declaration of Human Rights.[10] The simple fact that this expression exists
suggests that a person's freedom to marry the person of their choosing is
inalienable. In 1962,
the General Assembly recognized the importance of marriage by adopting the
Convention, on Consent to Marriage, Minimum Age, for Marriage and Registration
of Marriages.[11] The
1950-adopted European Convention on Human Rights states the same thing in
Article 12. This is the international scenario concerning an individual's
freedom to select a partner of their choice.
The idea that a person's body who is
under the age of 18 belongs to the State and that it is therefore permissible
for it to impose restrictions on personal sexual autonomy was, however,
rejected by a Special Court judge in 2013. The choice held that criminalizing
such behaviour would no longer similarly fulfil the objectives of the law when
deciding a case concerning a fifteen-year-girl who willingly eloped with and
married a 22-year-old man.[12]
This leads to a conflict between the legislation's letter and spirit.
Interpreting these facts differently may affect whether or not the assertions
that children engaged in sexual activity were under duress or voluntary. A
minor may lack the emotional maturity to comprehend what they consent to;
however, criminalizing it altogether would pose a detriment to those involved.
The legislation permits misuse in both directions: restricting children's
autonomy too much or excessively allowing child sexual abuse.
The problem with the current age of
consent is that adolescents are dragged into the rigours of the law just for
making an autonomous choice about their sexual activity, which is a primary
indication of biological urges. Adding a legal definition of consent in sexual
offences without making any provision for consent in consensual sexual crimes
offers a severe risk for the emergence of inconsistency and the potential of a
miscarriage of justice. Since there is no set age to justify the bar in such a
fluid process, and even though adolescents cannot express free consent, the
state lacks the authority to impose restrictions on their ability to exercise
their sexual and bodily autonomy. The criminalization of these acts curtails a
minor from exercising their right to bodily autonomy, and it further restricts
their average pace of development. Sexuality is inherent to a person's physical
and mental makeup. In addition to neurological and psychological factors, children
at this age are more likely to seek out relationships and companions to develop
emotionally and explore their identities. If the liberty to act on consensual
sexual relations is prohibited, it could lead to sexually deviant behaviour as
an adult. When the regulation treats consensual sexual activity as against the
law, it violates a minor's right to live with dignity, and it will become hard
for the ones wrongfully convicted under this Act to later combine into society.
When adolescent victims insist on staying with their partner and refuse to
return to their parents, they are institutionalised in children's facilities,
which compromises their freedom. According to a study on their situation, they
are alienated from their partners and society, criticised, humiliated, and
stigmatised for their acts, and on occasion not released even after they turn
18 years.
In the case of State v. Suman Dass,
the accused, a 22-year-old boy, was arrested under the POCSO Act for eloping
with a 15-year-old. The couple was married and resided in harmony. The State
contended that the accused should be given a minimum sentence under this Act
because any sexual conduct with a minor is a criminal act. The court determined
that such a restrictive construction of the legislation would be detrimental to
the minor's best interests and that the provisions should be interpreted more
broadly by the golden rule of interpretation, wherein the aim and purpose of
the Act are upheld.[13] Such an approach shall enable the success of
the Act by ensuring the fruitful development of the child. A pre-requisite to
this development would be upholding their right to privacy and confidentiality
must be protected through all stages of a judicial process involving the child.
A comparable circumstance, wherein a minor absconded with an older man and he
was charged under this Act, was observed in the case of Vijayalakshmi and
Others v. State and Others. She urged before the court to have the matter
dismissed, and the court passed in her favour. The court came to the conclusion
that the couple's private lives would be invaded if the consent criteria were
to be strictly enforced.[14]
Relationships of such nature cannot be treated as abusive and are merely a
result of natural biological attraction.
Even though the law is "gender
neutral," the unfortunate social structure mostly ends up criminalizing
the boys, even in mutual relationships or consensual eloping. Imprisonment of
young boys should not be the object of this Act. This often leads to
behavioural changes and traumatizes children against the justice system.
Criminalization also leads to violation of Articles 5 and 17 of UNCRC, which
advocate access to information regarding mental and physical health. This also
violates a child's right to dignity, privacy, and life guaranteed by Article 21
of the Indian Constitution.[15]
The courts have heard many cases
where the boy has been arrested for living with a minor, although they are
married under their customary or personal laws. Section 42A of the POCSO Act
expressly provides that in the event of conflict with another law, the POCSO
Act would take precedence.[16]
Thus, the Act itself provides no leeway to those married under their personal
laws. Although this may be perceived as a measure to curb child marriages, it
could be exploitative as well. The interpretation of this provision is done
differently by the High Courts. For instance, in the case of Fija v. State
Govt. of NCT of Delhi, the Delhi High Court provided protection against the
girl's family to the petitioners, a minor girl and her husband, on the grounds
that they had lawfully wed under their own personal law and had consenting
sexual relations.[17]This
is because the Court felt that the petitioners, who were evidently adored each
other and knew full well what they were doing, should not have been separated
because doing so would have harmed the girl rather than protected her.[18]
Every law is constructed and then interpreted with the historic social
realities in mind, in addition to the necessity of the law.
CONCLUSION AND
SUGGESTIONS:
The POCSO Act offers no protection
whatsoever to adolescents who are engaging in consensual sexual conduct and
discovering or expressing their autonomy. The purpose of safeguarding
adolescents from sexual harm is not sufficiently served by criminalising
teenagers who are in non-exploitative relationships. Their basic rights to
life, liberty, privacy, and dignity are violated since the State is permitted
to intervene, restrict, stigmatise, and punish acceptable sexual expressions.
Teenagers are put in more vulnerable situations and have their best interests
violated when the necessity to protect them is not balanced with their growing
autonomy. Access to safe sexual and reproductive health services and
information is also impeded.[19]
Given these concerns, striking an
equilibrium between safeguarding children from sexual abuse and maintaining
their right to autonomy and confidentiality is critical. This not only violates
the right of adolescents to bodily and sexual autonomy, but it also ignores the
chaotic nature of a legal system absent of socio-legal mobility. This may
involve revisiting the provisions of the POCSO Act and implementing safeguards
to prevent its misuse, such as ensuring that medical examinations are conducted
with the minor's informed consent and that children are not criminalized for
consensual sexual behaviour. The 205th Law Commission Report and the Justice
Verma Committee Report have both proposed revising the age of consent.[20]
These modifications are necessary in this context to enable adolescents in
India to practise their sexual liberty and expression without fear of
consequences from the law, which is crucial for the autonomous, holistic
development of the adolescent population.
This should be combined with a
close-in-age exception and the Romeo and Juliet laws concept. The person does
not qualify as a "sexual offender" when the Act is carried out with
the permission of both partners. The law has to acknowledge that minors older
than 16 with an age difference of no more than three years or who are the same
age as them can engage in consenting sexual behaviour. Various countries have
approved this to stop the exploitation of children by adults. Since
close-in-age consensual partnerships are thought to be less likely to be coercive,
such an approach must be employed.[21]
In places like Austria, Australia, Bolivia, and Sweden, the criminal justice
system takes a more liberal and tolerant approach because they have the defence
of "close-in-age" or "age proximity." This implies that sexual
interaction between people of similar ages will not be considered a crime. In
the Netherlands, the perpetrator will only be brought to court if a minor
victim, aged 12 to 16, files a claim against non-violent sexual conduct.
Suppose the age gap between the minor and their partner is not more than four
years. Under the Romeo and Juliet statutes of the United States, consenting to
sexual encounters is not illegal.[22]
The social stigma associated with
discussing sexual intercourse in India results in sexual violence victims
suppressing their voices and feeling ashamed. Similarly, when adolescents are
curious about these matters but do not have their questions addressed, they may
be inclined to experiment independently and make uninformed decisions. This could
potentially expose vulnerable minors to exploitation, as they lack any form of
education on matters related to consent and sexual activity. This reinforces
the relevance of comprehensive sex education while bearing in mind that the
practical challenges of providing this type of instruction in a culturally and
racially diverse nation like India may be addressed by a more nuanced and
sensitive approach.[23]
Policies are necessary to provide guidance and educate teenagers on how to make
safe and healthy choices regarding their sexual activities. To create a
framework that upholds protection and autonomy, more focus should be on
fostering continuing discussions involving lawmakers, educators, legal
professionals, and adolescents. Lastly, the solution entails passing laws that
safeguard the legal rights of vulnerable children while encouraging healthy
adolescent development.[24]
The problem is made worse by structural factors including poverty, unequal
development, discrimination against girls, and a lack of possibilities for
education, which leads to elopements in the hopes of improving their futures.
[1] Yashaswini Basu et al., POCSO
And The Age Of Consent: Question Of Teenage Sexual Exploration And Bodily
Autonomy, OUTLOOK, Thursday, 27 JUL 2023, 7:34 AM,
https://www.outlookindia.com/national/pocso-and-the-age-of-consent-question-of-teenage-sexual-exploration-and-bodily-autonomy-news-305925.
[2] United Nations, General Assembly,
United Nations Convention on the Rights of the Child, November 20, 1989, United
Nations, Treaty Series, vol. 1577, p. 3
[3] Veenashree Anchan et al., POCSO
Act, 2012: Consensual Sex as a Matter of Tug of War Between Developmental Need
and Legal Obligation for the Adolescents in India, SAGE JOURNALS, Oct 19,
2020, https://journals.sagepub.com/doi/full/10.1177/0253717620957507
[4] The Protection of Children from
Sexual Offences Act, 2012, § 19, No. 32 of 2012, Acts of Parliament, 2012
(India).
[5] Anubhav Kumar et al., Why the
protection of teenagers needs to be balanced with respecting their sexual
autonomy, SCROLL.IN, October 05, 2023, 7:30 am,
https://scroll.in/article/1057009/why-the-protection-of-teenagers-needs-to-be-balanced-with-respecting-their-sexual-autonomy
[6] Himanshu K Mishra, Law: An
Impediment in Sexual Autonomy of Teenagers, 3 Jus Corpus Law Journal
327-333 (2022).
[8] Independent Thought v. Union of
India and Anr., [2017] 10 SCC 800
[9] Payal Sharma alias Kamla Sharma v.
Superintendent, AIR 2001 All 254
[10] Universal Declarations of Human
Rights, G.A. Res. 217A, U.N. Doc. A/810 (December12, 1948).
[11] Convention on Consent to Marriage,
Minimum Age for Marriage, and Registration of Marriages, G.A Res. 1763 A,
(November 07, 1962).
[12] Savita Bhatnagar, Child sexual
abuse and the law in India: a Commentary, Legal Express An International
Journal Of Law, 6, 1-9 (2020),
https://legalexpress.co.in/downloads/child-sexual-abuse-and-law-in-india-prof.-.savita-bhatnagar1.pdf.
[13] Suman Das & Anr v. The State
Of West Bengal & Ors., WPA 4364 of 2020
[14] Vijayalakshmi and Others v. State
and Others, 2022 Latest Caselaw 11692 Mad
[15] United Nations Convention on the
Rights of the Child, November 20, 1989, United Nations, Treaty Series, vol.
1577, p. 3
[16] The Protection of Children from
Sexual Offences Act, 2012, § 42A, No. 32 of 2012, Acts of Parliament, 2012
(India).
[18] Atishya Kumar, POCSO vs.
Personal Laws: The Need to Reevaluate the Age of Consent, VIDHI CENTRE FOR
RESEARCH AND POLICY, Dec 19, 2022,
https://vidhilegalpolicy.in/blog/pocso-vs-personal-laws-the-need-to-reevaluate-the-age-of-consent/
[19] Swagata Raha, Criminalizing
adolescent sexuality – The protection of children from sexual offences act and
the rights of adolescents, NLU PROJECT 39A, March 4, 2021, (November 03,
2023),
https://p39ablog.com/2021/03/criminalizing-adolescent-sexuality-the-protection-of-children-from-sexual-offences-act-and-the-rights-of-adolescents/
[20] Rishav Devrani, Relinquishing
Adolescent Sexuality in India: Rape and Consensual Sex Under the POCSO Act,
JURIST, Jun 21, 2022, 12:30 AM,
https://www.jurist.org/commentary/2022/06/rishav-devrani-adolescent-consent-india/.
[21] Suchitra Singh, Age of Consent
Under POCSO: A Need for Change?, 6 SSRN 1-4 (2023).
[22] Lina A Mathew, Right to Sexual
Autonomy of Children- Implications of the UNCRC Upon the Indian Law on the Age
of Consent, 8 International Journal for Crime, Justice and Social Democracy
121-134 (2019).
[23]
Veenashree Anchan et al., POCSO Act, 2012: Consensual Sex as a Matter
of Tug of War Between Developmental Need and Legal Obligation for the
Adolescents in India, 43 Indian Journal of Psychological Medicine 158–162
(2021).
[24] H. S Tatiya et al., Consensual
Sexual Intercourse Among Children vs Current Legal Provisions Under POCSO: A
Scientific Review With Prospective Quantitative Analytical Study, 20
Medico-legal Update 60-64 (2020).
Article Information
THE CONFLICT BETWEEN A MINOR’S RIGHT TO PRIVACY AND BODILY AUTONOMY: A CRITICAL ANALYSIS OF THE POCSO ACT, 2012
Authors: ANDREA MIRIAM STANLEY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/16
- Issue 7
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International Journal for Legal Research and Analysis
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