Why Are POCSO Act's Provisions On Mandatory Reporting Under Challenge?

Delhi High Court on Tuesday issued a notice on a public interest litigation challenging the provisions of Protection of Children from Sexual Offences (POCSO) Act, 2012, that pertain to mandatory reporting of suspected sexual abuse of minors. The petition filed by a lawyer particularly challenges the mandatory reporting in context of consensual sex between minors.

In recent years, there has been a growing demand for decriminalising the acts of consensual teenage sex, particularly of those falling in the age bracket of 16-18 years. Since a minor’s consent is considered immaterial in law, a number of teenagers on the cusp of age of majority have found themselves entangled in the web of criminal prosecutions.

High Courts in such matters often are faced with unique situations where the couples, even after registration of FIRs alleging rape, have married and are living together as husband and wife. The FIRs are usually registered by the families of so-called victims and result in compromise within a few months of registration. In bail matters, the courts have now started to consider the question of consensual sex as one of the grounds for grant of bail.

POCSO Act Provisions

Section 19 of the Act makes it mandatory for any person including the child to approach the police in case of an apprehension that an offence under the Act is likely to be committed or "has the knowledge" that such an act has been committed.

The information is required to be provided to the Special Juvenile Unit or the local police and the law makes it clear that "no person shall incur any liability, whether civil or criminal, for giving the information in good faith".

However, a person who fails to report the offence can be punished with a maximum imprisonment of six months or with fine or both under Section 21 of the POCSO Act. Though the child also is required to report the offence to the police but has immunity against the punishment prescribed for non-reporting.

Besides Section 19 and Section 21, Section 22 of the POCSO Act is also under challenge. The provision provides for punishment against filing of false complaint or false information under the Act.

Supreme Court Ruling

The Supreme Court in a landmark judgement in September 2022 said the doctors need not disclose the identity and other personal details of the minors seeking medical termination of pregnancy, in case there is a request for that from the minor and her guardian.

“If there is an insistence on the disclosure of the name of the minor in the report under Section 19(1) of POCSO, minors may be less likely to seek out Registered Medical Practitioners(RMPs) for safe termination of their pregnancies under the MTP Act," the apex court said.

Hearing a petition which sought a direction to allow minor girls between 16 to 18 years to terminate their pregnancy arising from consensual relationship without reporting the case to the local police, a division bench of Delhi High Court last month said no orders are required to be passed in view of the decision of the apex court.

In continuation of the Supreme Court judgement, Justice Prathiba M Singh last month directed the Delhi Government to issue a circular directing that the identity of a minor girl and her family shall not be disclosed in the report prepared by registered medical practitioners (RMP) to the police.

Arguments In Challenge

In the petition challenging the POCSO Act provisions, it has been alleged that t​​housands of adolescents are languishing in jails as under trials or convicts for having consensual sex with under 18 minors. It argues that impugned Sections not only violate the right to privacy but also take away the minor's agency.

“That POCSO is to protect minors from rapacious sexual offences and sexual violence by predators, pedophiles and criminals and does not aim to criminalize consensual sex. Even in sexual offences, survivors have agency to give informed consent for not reporting. With fast changing society norms, 16 to 18 year olds (and even 14 and 15 year olds) are exploring their sexuality by bold physical experimentation. Embroiling them in criminal cases is a testimony of complete disconnect with reality,” it argues.

The Supreme Court in the November 2022 judgment clarified that the exemption to doctors from mandatory reporting is only for "limited purposes of providing medical termination of pregnancy in terms of the MTP Act".

Though the petition also alleges that the provisions discourage pregnant minors from seeking help from approved medical facilities, the argument may no longer be tenable in view of the Supreme Court judgement. However, the petition also highlights that the requirement of mandatory reporting existd under other laws as well.

“Sec 164A of Cr PC makes it obligatory for physicians to conduct medico-legal examinations only after informed consent. This implies that sexual abuse survivors are autonomous and have agency over their bodies. However, Sec 357C, Cr PC contradicts 164A as reporting to police is compulsory. Usually, at such crossroads, a hospital may deny treatment for fear of 357C Cr PC since Section 166B IPC stipulates punishment for violation of 357C. Further, MTP Act 1971 obliges doctors to keep information on pregnant girls and women confidential. However, the POCSO Act makes it mandatory to report sexual activity (consensual or otherwise),” the petition argues.

Courts On Consensual Sex Vis-à-vis POCSO Act

While the petition before Delhi High Court does not particularly seek any relief in respect of age of consent and doesn’t demand decriminalising of consensual teenage sex, the courts across India have batted for amendments in the law for consideration of cases where the minor girl unequivocally comes out in support of the accused and says that their sexual activity was consensual.

Upholding the conviction of an accused in a POCSO Case, the Madras High Court in December 2022 said it is "eagerly" waiting for an amendment in the law to appropriately deal with cases involving relationships of adolescents.

In Vijayalakshmi & Anr. v. State by Inspector, the court had earlier observed that the legislature must take into consideration the cases of adolescents involved in relationships and should swiftly bring in necessary amendments under the POCSO Act.

In November 2022, the Delhi High Court said the intention of POCSO Act was to protect the children from sexual abuse and not criminalise consensual romantic relationships of young adults.

Bombay High Court in February 2021 said while POCSO Act has been a "significant and progressive step" in securing children's rights, incidents of consensual sex between minors has been a grey area under the law as minor's consent is not valid in the eyes of law.

In a unique case, the Delhi High Court recently granted bail to a 20-year-old after the victim — the wife of accused, told the court that they were in a consensual relationship at the time of alleged offence, and is offering to stand as surety for him in case he is granted bail.

The High Court in fact has laid down a criteria for considering such cases. In addition to the nature and quality of the evidence before it, the court under the ruling can also factor in certain real life considerations to tilt the balance against or in favour of the accused, while deciding a bail plea at the post-charge stage. Comparative age of the victim and accused, and existence of “tacit approval-in-fact” can be considered in bail plea of cases of such nature, as per the ruling.

Chief Justice of India DY Chandrachud also, while speaking at a public event in December 2022, said that this category of cases poses difficult questions for judges across the spectrum. “There is a growing concern surrounding this issue which must be considered by the legislature in view of reliable research by experts in adolescent healthcare,” Chandrachud said.