The Chief Justice of India’s message to Parliament to address concerns about the age of consent under the POCSO Act is the culmination of a series of events. The Madras, Delhi and Meghalaya High Courts have flagged matters concerning criminalisation of romantic relationships between or with an adolescent under POCSO. On November 12, the Delhi High Court in AK v. State Govt of NCT of Delhi (order by Justice Jasmeet Singh) stated that the intention of POCSO was to protect children below the age of 18 years from sexual exploitation and not to criminalise romantic relationships between consenting young adults. This week, the government told Parliament that it does not have any plan to revise the age of consent.
The root cause of the problem at hand is that POCSO conflates exploitative sexual practice and general sexual expression by an adolescent, and criminalises both. As a result, criminal law has become an instrument to silence or regulate a non-exploitative consensual sexual relationship involving a minor girl, which is voluntary. The Tamil Nadu police guidelines directing police personnel to not act hastily when arresting youngsters for romantic cases under POCSO is one intervention to address the Act’s tendency to overcriminalise. However, the cumulative victimisation of the “consenting” girl also deserves the lawmakers’ attention. POCSO, MTP and the Child Marriage Act create a complex socio-legal web that deprives the minor girl of the rights to dignity, liberty, sexual and reproductive health, and undermines her privacy. This also feeds into a milieu of poor sexual awareness among young girls.
The legal aspects of teenage sexuality have undergone several changes since colonial times. The age of consent has increased from 10 to 12 to 14 to 16 and finally to 18 years by the 2013 amendment, in order to bring it in conformity with the then newly legislated POCSO Act. The law disregards the likelihood of a minor girl engaging in sexual activity voluntarily — it thus desexualises her. The law that criminalises adolescent sexuality either ignores social reality or pretends to do so. According to the NFHS-5, for instance, 39 per cent women had their first sexual experience before turning 18. The same survey provides additional evidence of sexual engagement among unmarried adolescent girls by reporting contraception use by 45 per cent of unmarried girls in the age group of 15-19 years.
The recent criminal law amendment in UP that imposed a blanket ban on granting anticipatory bail to a rape accused rubs salt on the already wounded. The state seems to be acting as parens patriae to protect children from sexual offences and paradoxically prosecuting the youth at the same time. The number of juveniles (especially those between the ages of 16 and 18) apprehended under the POCSO Act in the country has seen a staggering jump of 180 per cent between 2017- 2021 according to the National Crime Records Bureau’s report, ‘Crime in India 2021’. Criminalising underage sexuality (25 per cent of total POCSO cases) burdens the already-overburdened courts thereby clogging up the criminal justice machinery even more.
What has been set wrong by the legislature has been attempted to be remedied by the judiciary. The Madras High Court in Vijayalakshmi v State (2021) made it imperative to draw a line demarcating the nature of acts that should not be made to fall within the scope of this stringent law. The obiter of the court that POCSO has become a tool in the hands of certain sections of society to abuse the process of law is corroborated by other courts too. Prima facie the judiciary seems to have a sympathetic approach in cases — it has readily granted bail — where the outcome of the love affair is marriage. However, courts are reluctant to grant bail in matters of a love affair with a minor girl gone bad — X (minor) v State of Jharkhand & anr, (2022) is a case in point.
In Dharmendra Singh v State Govt of NCT (2020), the Delhi High Court has attempted to increase the chances of bail of an accused in an “innocent yet unholy physical alliance” or where there is “tacit approval-in-fact” by the girl and the “age difference between the victim and the offender is less”. These guidelines issued by the court pertain to close-in-age exemptions, available in statutory rape cases in most US states. Also known as the Romeo-Juliet law, it provides a degree of protection to the offender where the age difference between him and the victim is within the stipulated limit.
In a recent speech at the Delhi Commission for Protection of Child Rights, former Supreme Court judge, Justice Madan Lokur talked about the need to evolve a separate procedure for children while dealing with POCSO cases. The relief accorded by a few high courts to “not so” criminal male adolescent/youth is disproportionate to the harm and harassment caused for the fault of falling in love with a girl who purportedly is “not so” immature. It would be not an overstatement to describe these “romantic” lovers in a mutually consensual relationship as victims of the abuse of the criminal justice system processes. The quest for more meaningful solutions should now come to a logical end before it creates greater havoc in society.
Gautam is Associate Professor of Law (USLLS), Guru Gobind Singh Indraprastha University; Tewari is Associate Professor, Department of Geography, Dyal Singh College; Das is Ph.D Scholar (USLLS), Guru Gobind Singh Indraprastha University
