CJI DY Chandrachud Urges Parliament To Consider Concerns About Age Of Consent Under POCSO Act

The CJI was delivering the keynote address at the inaugural two-day Session of the National Stakeholders Consultation on the POCSO Act being organized by the Supreme Court Committee on Juvenile Justice, in association with UNICEF.

During his address, the CJI noted that one of the topics that would be discussed by the panel during the session pertains to judgments of the POCSO Courts in 'Romantic Cases' or cases where consenting adolescents engage in sexual activities.

Noting that such cases pose difficult questions for judges, he said:

"You are aware that the POCSO Act criminalizes all sexual acts among those under 18 regardless of whether consent is present factually among the minors because the presumption of the law is that there is no consent in the legal sense among those below 18. In my time as a judge, I have observed 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," CJI Chandrachud observed while speaking on the issue.

The CJI's speech can be watched here.

Here it may be noted that the POCSO Act criminalizes all sexual activities for those under the age of 18 even if consent is present between two minors engaged in sexual activity because the law presumes that consent given by minors (below the age of 18) is no consent at all.

The remark from CJI Chandrachud comes in the backdrop of the recent observation of the Madras High Court wherein it said that the Court is "eagerly" waiting for an amendment in the law to appropriately deal with cases involving relationships of adolescents.

The bench of Justice P Velmurugan made this comment while upholding the conviction and sentence of one Ravi who was accused of kidnapping and forcibly marrying a 17-year-old girl in May 2014. He was convicted by the trial court under Sections 366 of IPC, Section 5(l) of the POCSO Act and Section 3(1)(w)(i) r/w 3(2)(Va) of SC/ST Act and sentenced to rigorous imprisonment for a period of ten years.

"Whereas, the law defines that the person who has not completed the age of 18 years, is a child. This Court, being an Appellate Court, is a final fact finding Court cannot traverse beyond the statute. This Court also eagerly is waiting for the amendment in the Legislature as expressed by my learned brothers," the Court said.

Read more about Madras HC's observations here: Upholding Conviction In POCSO Case, Madras High Court Says It 'Eagerly Awaits' Amendment In Law For Cases Involving Teenage Relationships

It may further be noted that days after the Madras High Court delivered the Judgment, Tamil Nadu Director General of Police (DGP) issued a circular instructing police official not to show haste in arresting youths in cases registered under the POCSO Act as many such cases involve mutually consenting romantic relationships.

Last year also, the Madras High Court had said: "Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act."

Our readers may further note that recently, the Delhi High Court too observed that the intention of The Protection Of Children From Sexual Offences (POCSO) Act was to protect children from sexual abuse and not criminalize consensual romantic relationships of young adults.

Significantly, in a series of orders, the Meghalaya High Court has been granting reliefs to minors in such cases (read here, here, and here). For instance, in October 2022, while quashing POCSO charges against a minor's partner, the Meghalaya High Court observed that the term 'sexual assault' as per the POCSO Act cannot be attributed to an act where there is mutual love and affection between a young couple (boyfriend and girlfriend).

In fact last week, Justice Madan B. Lokur, former judge of the Supreme Court, also said that 17-year-old boys and girls involved in a romantic relationship know what they're doing and are aware of the consequences and therefore, why should they be prosecuted, he questioned.

He added: "So many of these cases where 17 years old boy and girl are involved in a romantic relationship...they know what they're doing. If they know what they're doing, they are aware of the consequences. Why should you prosecute them? When you talk about decriminalizing homosexual activity, how about decriminalizing this? That's also possible."