PIL Against Mandatory Reporting Of Cases Of Consensual Sex Involving Minors Under POCSO Act, Delhi High Court Issues Notice

The Delhi High Court on Tuesday issued notice on a PIL challenging various provisions of Protection of Children from Sexual Offences Act, 2012 requiring mandatory reporting to police or registration of FIR in cases of consensual sex involving minors.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad sought response of Union of India through Ministry of Law and Justice within eight weeks.

Moved through Advocate Harsh Vibhore Singhal, the plea challenges the constitutional validity of sections 19, 21 and 22 of POCSO Act as being violative of Article 21 of Constitution of India.

The PIL submits that the impugned provisions deprive minors of their lawful agency and decisional capacities to make informed choices about their sexuality and sexual expression and competence to give informed consent as whether or not to report such cases against them.

“The provisions requires ‘by any person’ to mandatorily report suspicion or knowledge of sexual offences involving under 18 minors to the police u/s 19, prescribes imprisonment u/s 21 for failure to do so and provides a neat safety valve u/s 22 for false reporting or for giving false information if done in good faith!”, the plea states.

Reliance has been placed on decision of Bombay High Court in Arhant Janardan Sunatkari v. State of Maharashtra where it was observed that consensual sex between minors has been in a “legal grey area” because the consent given by minor is not considered as valid.

The plea argues tha the impugned provisions violate right to privacy of minors by getting mandatorily reported despite informed consent for refusal to report and also compel them to risk of life and limb “by visiting quacks fearing that approved medical centers would report and get them hauled into criminal process.”

It adds that no police or court can force any minor in consensual sex to report the sexual activity and that mandatory reporting “discourages minors and grown up women” from seeking prenatal, reproductive and sexual healthcare.

Submitting that there is also a proclivity for exploitation and extortion in the organized systems of healthcare in mandatory reporting, the plea states:

“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.”

The plea seeks a declaration that before any act of sexual conduct gets registered as FIR at any police station, express consent must be obtained as a condition precedent of the minor victim or consent through a guardian [if under 12 years of age].

A direction is also sought on Central Government to harmonize conflicting and variant laws relating to patient confidentiality and reporting requirements for sexual offences under different statutes i.e. MTP Act and CrPC.

Title: Harsh Vibhore Singhal v. Union of India