Chief Justice of India D Y Chandrachud Saturday asked lawmakers to address the “growing concern” on the criminalisation of adolescents, who engage in consensual sexual activity, under the Protection of Children from Sexual Offences (POCSO) Act. The 2012 Act fixes the minimum age of consent at 18. “As you are no doubt aware, the POCSO Act criminalises all sexual activity for those under the age of 18, regardless of whether consent is factually present between the two minors in a particular case. In my time as a judge, I have observed that this category of cases poses difficult questions for judges across the spectrum,” said CJI Chandrachud during a keynote address at the National Annual Stakeholders Consultation on Child Protection. “There is growing concern surrounding this issue, which must be considered by the legislature in light of reliable research by experts in adolescent healthcare,” he said. The CJI said the enactment of the POCSO Act, while being a watershed moment in the history of child rights in India, was only the first step in a long journey. He said that families of victims are immensely hesitant to file police complaints owing to factors like the slow pace of the criminal justice system and the stigma associated with such cases. “There exists a culture of silence which stems from shame and conceptions of family honour,” he said. CJI Chandrachud said there were two harmful stereotypes that contribute to entrenching this culture of silence. “The first is the stereotype that only the girl child can or is likely to be sexually abused and the second is that the perpetrator is always a stranger. Research has consistently demonstrated both that boys at equal risk for sexual abuse and that the perpetrator is known to the victim in an overwhelming number of cases, and may be an immediate family member, caretaker or neighbour.” On the effect of sexual abuse on children, he said: “Exposure to sexual violence at an early age leads to severe trauma and impairs cognitive development. It has lifelong ramifications and limits the fullness with which the child could have lived his life. Beyond the direct and profound cost to the victims, it affects their communities, disrupts social cohesion, and increases the burden on health, social welfare, and criminal justice systems”. He said that the Delhi Commission for the Protection of Child Rights found that there is a high correlation between child rape and dropping out of school. The CJI said that the long-lasting implications of child sexual abuse makes it imperative for the state and other stakeholders to create awareness regarding prevention of such abuse, its timely recognition, and the various remedies available in law and otherwise. “Children must also be taught the difference between ‘safe touch’ and ‘unsafe touch’. While this was previously couched as ‘good touch’ and ‘bad touch’, child rights activists have urged parents and others to use the words ‘safe’ and ‘unsafe’ because the words ‘good’ and ‘bad’ have moral implications, especially for children, and may prevent them from reporting abuse,” he added. CJI Chandrachud also said there is an urgent need to ensure that the so-called honour of the family is not prioritised over the best interests of the child. “The state must encourage families to report cases of abuse even where the perpetrator is a family member.” He also called upon judges to remember that children may not have the same vocabulary as adults and may not be able to discuss the details of abuse in the same way that adults do, but this does not mean that they do not know what the perpetrator did to them. “Children of different ages may express themselves differently but the essence of what they are communicating must be understood, especially during chief- and cross-examination,” he said.
