Applicability Of The POCSO Act On The Consensual Relationship Between The Minor
Recently the CJI D.Y. Chandrachud has urged the parliament to reconsider the age of consent under the Protection of Children from Sexual Offences Act, 2012 (POCSO) he stated that major difficulty encountered in POCSO cases by the Judges is in situations where the consent is factually present but regardless of it since the POCSO criminalizes all the sexual acts among those under 18 years...
Recently the CJI D.Y. Chandrachud has urged the parliament to reconsider the age of consent under the Protection of Children from Sexual Offences Act, 2012 (POCSO) he stated that major difficulty encountered in POCSO cases by the Judges is in situations where the consent is factually present but regardless of it since the POCSO criminalizes all the sexual acts among those under 18 years and presumes that there is no consent among those below 18 years.
So in this piece, the author will be examining the issue of consent under the POCSO Act and its applicability to the consensual relationship between minors which often gets criminalized by the applicability of this act.
The Objective Behind The Legislation
POCSO Act was welcomed as legislation that comprehensively dealt with crimes of sexual assault against children. This legislation was enacted to protect children from sexual offences.
The objective of the Act was to protect the children so that he/she does not feel a sense of discomfort or fear and to create a child-friendly atmosphere this was stated by the Supreme Court in the case of Alakh Alok Srivastava v. UOI while interpreting the objective and purpose of the POCSO act. The legislation wants to secure the best interest and well-being of the children to ensure their healthy development takes place.
Age Of Consent Under The POCSO Act
Under section 2(1) (d) of the POCSO Act, a child is defined as any person below the age of 18 years.
Court’s Interpretation Of The ‘Grey Area’
The courts in India have tried to interpret the POCSO provision creatively in light of the cases where the consensual relationship is there among minors. With regard to this the Madras High Court should be hailed for the progressive interpretation it has taken in the case of Sabariv. Inspector of Police where they have interpreted the section 2(d) of the POCSO in light of the consensual relationship among the minor, the court stated that in cases of the consensual relationship among the minors the definition of child under section 2(d) can be redefined as 16 instead of 18 years and any consensual sex after the age of 16 can be excluded from the provision of the POCSO.
The court ruling is correct in the manner since the objective of this legislation was to protect the minors from sexual offence and not to criminalize the relationship among the minors and POCSO was never intended to penalize the teenagers in relationships.
Further, the stringent provisions that the POCSO Act encompasses, for example, section 4 of the POCSO act prescribe a minimum of 7 years' punishment for sexual offences these provisions should be excluded from their application to these consensual relationships among minors.
The Madras HC encountered one such case in 2021 named Vijaylakshmiv. State where the facts were that both the adolescent boy and the girl consensually left their house and subsequently the parents lodged a complaint and the police registered FIR under various offences under the POCSO act. The HC observed that due to the FIR the boy's youthful life has been severely affected and punishing the adolescent boy for a relationship with the minor girl was never the objective of the POCSO act, subsequently, they quashed the proceedings under section 482 CrPC, 1973.
Another instance of the law being misapplied and being misused is the case of police filing cases under the POCSO act at the behest family of the girl who opposed her relationship with the boy this instance was evident in the case of Pradhuman v State and the court expressed displeasure on this unfortunate practice being carried out by the law enforcement agencies.
What ones need to take into account is that the adolescent's decision-making ability is not fully developed what they need is support and guidance from the parents and society at large and not the criminalization of these consensual relationships. Thus one needs to take into account that consensual teenage relationships are a social fact and the POCSO act needs to be accordingly amended. Further, the court should also take into account the psychological factors that play a role at the time of the growth of an adolescent while adjudicating upon these cases.
Since it is upon the legislature to accordingly make the amendments in the POCSO Act while taking into account societal needs and the social realities that consensual relationships exist among minors. The imperative is upon the legislature to fix this anomaly in the law and not on the courts.
While the Madras HC as evident in the above two judgments has taken a very progressive view but at the same time, there are cases like the case of Maruthupandi v. State where the literal interpretation of the act has been taken into account and the court observed that POCSO act provision would be applied irrespective of whether the relationship was consensual or not. Thus to settle the position of the law with respect to this ‘grey area’ an amendment from the legislature is the need of the hour and this law definitely requires a rethinking with respect to this aspect.
Views are personal.