Deformity Relating To Age Of Child Under POCSO Act

Deformity under POCSO-

The Act has failed to sustain the growing needs of society and bring necessary amendments. It did not consider the consensual romantic relationship involving adolescents of age below 18 years. Under the Act the child is described as any person below the age of eighteen years^[1], criminalising any type of sexual relationship with a person below 18 years of age.

The law overlooked that during adolescence, due to hormonal and biological changes in the body, adolescents are naturally inclined towards entering into relationships which might lead to physical intimacy. Their tendency to engage in physical relationships is due to the biological and social need of intimacy, it does not have any criminal intent behind the acts.

Criminalisation of the physical relationship between two adolescents is based on the old perceived notion that the girl is the ‘victim’ and the boy is ‘guilty’, which leads to adolescent boys being subjected to the Juvenile Justice Act as Children in conflict with law. Sometimes it can also lead to the adolescent boy being treated as an adult offender in trial courts for heinous offences such as rape rather than juvenile board, destroying their life at a tender age.

The POCSO Act is said to be gender neutral law, but it still differentiates between adolescent boy and adolescent girl. In a case involving the physical relationship between adolescent boy and adolescent girl, the girl is treated as the victim and the boy is treated as an accused. The Act prioritises the protection of the girl child over the boy child. The world is moving towards the global gender equality but still such progressive Act is putting the protection of the girl child on a higher pedestal than that of the boy child. By not acknowledging the consensual relationship between adolescents, this Act is contributing to gender inequality.

It is also shocking to note that before Independent Thought vs Union Of India^[2] case judgment, the age for sexual relations in the case of marriage was 16 years, whereas in the case of romantic relations it is taken as 18 years. Marriage used to grant protection to people who engage in sexual relationships with girls of age between 16 to 18 years. The law used to have an exception for child marriage which is a result of social evil and detrimental to the development of children, but the law refused to even recognise the romantic relationship between adolescents which is a result of biological attraction. According to a report referred by the Constitutional Court of South Africa, sexual activity during adolescence is important for the development of an individual.^[3] Whereas child marriage is prejudicious for their development.

In addition, the Act by criminalising the sexual relationship between adolescents is also in violation of right to choose partner conferred by article 21 of the constitution.^[4] It presupposes that adolescent girls are not mature enough to be able to give consent, depriving them of the right to choose partner.

Repercussions of Deformity-

Due to the deformity in the Act, it is misused by the family of an adolescent girl. In cases, where the family of an adolescent girl has not accepted the boy for whatever reasons, the Act is used by the girl’s parents as a weapon to frame innocent boys as criminals for serious offences like rape and abduction to reprimand them from pursuing their relationship.

The Act also prevents adolescents from seeking medical health services at registered clinics and hospitals as the Act mandates the reporting to officials.^[5] Therefore, it causes fear in the mind of young couples of prosecution, encouraging them to go to illegal and unsafe clinics for medical advice and treatments putting them in danger.

The filing of romantic cases i.e., cases involving two consensual adolescents, also unnecessarily overburdens the limited resources of the judicial system. Nearly 2 lakh cases booked under the Act are still pending in the courts.^[6] Due to the pendency of cases involving consensual relationships, the other serious cases which calls for the immediate attention of courts are deprived of timely justice.

Way to Solve the Deformities-

To solve the deformity, there is a need to decriminalise physical relationships between adolescents. Decriminalising the consensual, non-exploitive sexual relationship between adolescents of similar ages will be a progressive step, as recommended in general comment 24 by the UN committee on the Rights of the Child.^[7] For that, there is a need to lower the age of consent from 18 to 16 years as recommended by the reports of Justice J.S. Verma Committtee on Amendments to Criminal of 2013^[8] and the report of Why Girls Run Away To Marry – Adolescent Realities and Socio-Legal Responses in India.^[9]

Lowering the age of consent to 16 years would not completely solve problems associated with the law, as it is not a stringent rule that only after attaining the age of 16 years the adolescent becomes mature enough to be able to give free consent. Therefore, some discretionary power should also be granted to the courts for determining the validity of consent, but such discretionary power must be restricted to be exercised only when the age of adolescent is below 18 years to prevent judicial arbitrariness.

Until the amendment is made in the Act, the courts need to play an active role and take the responsibility of purposively interpreting the Act. Many High courts have started to recognise the relationship between young adolescents while considering mutual love and affection.^[10] Though, the courts have not accepted the consent given by the minor girl as valid consent but has refused to strictly follow the Act by considering that the consensual relationship borne out of mutual love between adolescents cannot attract the provisions of the Act.^[11] In Ranjit Rajbanshi vs State of West Bengal^[12] case the court took a different approach, the court while accepting the above position interpreted the expression “penetration” as envisaged in the Act as a positive, unilateral act on the part of the accused.^[13] And held that in the case of a consensual relationship between adolescents, sexual intercourse between two adolescents is not a unilateral act but it is a participatory act done out the volition of both girl and boy.^[14]

It should be reminded that the POCSO act was enacted with “an aim to protect and render justice to victims and survivors of child abuse, not a tool to be used to abuse the process of law.^[15] It was never an objective of the Act to punish an adolescent boy who entered into a consensual relationship with the minor girl.^[16] The Act is curtailing the right to engage in sexual activities of young adolescents, deviating from its original aim which is to protect children from sexual abuse. The law should be aimed at protecting non-exploitive consensual sexual activity between adolescents, which is protected under the constitution, making an advancement in the exercise of rights. Decriminalising sexual relations between young couples would strike a balance between the protection of children from sexual abuse and their liberty to engage in sexual activity. Recognising relationships between adolescents would mean recognising their emotions and their personal choices. Therefore, it would be a progressive step towards the betterment of the overall development of children.

Views are personal.