Opinion The case against lowering age of consent

Based on the analysis of POCSO judgments, at least three studies done between 2018 and 2022 pointed out that in 18 to 25 per cent of cases registered under the POCSO Act, the victims and the accused were either found to be in consensual relationships or these were “romantic cases”, as the studies described them.

Parents of minors misusing the law is another reason in support of amending the law. Media has reported cases in which the girls’ parents want the police to press charges under the POCSO Act against the accused in cases where the two have eloped or engaged in consensual sexual activity.

Looking purely from the lens of the privacy of two adolescents, these might sound convincing reasons to review the POCSO Act. But when we look deeper, there are multiple reasons why these arguments are misconstrued.

First, any assessment of judgments does not capture the factual position on the ground. This is particularly true for higher courts where the case is fraught with multiple delays. It is crucial to note that these judgments are based on statements given by the victims two to three years into the trial rather than their first submissions. POCSO victims change their statements during the course of the trial because they feel powerless to take recourse in the judicial system where we have had insensitive comments and orders — asking them to marry their rapists or even observing that skin-to-skin contact with the accused was necessary to establish a case under POCSO. After much hue and cry, these observations were expunged and orders quashed but the disillusionment felt by the victim cannot be reversed.

Earlier this month, a gang rape victim appeared before the Delhi High Court along with the main accused’s lawyer and claimed on record to not have recognised her own lawyer through whom she gave her testimony at the District Court in May. Her lawyer did not know what to say. No analysis of the judgment in this case will be able to verify “consent”.

Many of the victims are disgruntled because of prolonged delays and want to move on. Others admit to consensual relationships because of coercion, threat and influence by the accused.

A classic example is the Jessica Lal murder case. Witnesses turned hostile and there were no convictions. Based solely on the testimonies and the resulting judgment, one can say that no one killed Jessica.

Therefore, amending laws based on such statements and judgments derived from them will be inherently flawed.

For the sake of argument, let’s support the theory that we should devise legislation or change it based on our analysis of judgments. Between 2017 and 2019, the average conviction rate in POCSO cases across the country was around 30 per cent, as per NCRB data. Should we then repeal the POCSO Act on the assumption that out of every 100 cases, the accused are acquitted in 70 cases?

Secondly, the police do not register FIRs in many cases based on the premise that the girl in question eloped consensually. In doing so, they violate the Supreme Court’s 2012 judgment, and the Union Ministry of Home Affairs advisory based on the Court ruling saying that in case of a complaint of missing children, an FIR should be immediately registered with an initial presumption of either abduction or trafficking, unless, in the investigation, the same is proved otherwise. Thousands of genuine trafficking cases go unreported based on the elopement theory. Various state governments issued circulars to the police to abide by the SC ruling. Many in the police opposed the move citing increased caseload as the reason.

Thirdly, around 12 lakh minor girls in India are involved in commercial sex, according to data from the Ministry of Women and Child Development. They are given hormones to appear mature, live in airless bunkers and are pushed into the trade when they are as young as 10 to 13 years old. These girls know what they are doing and they depend on sex trade for their livelihood. But doing something in a vulnerable situation due to a lack of choices is not consent, and these are certainly not “romantic cases”. If we lower the age of consent, we cannot try the cases in which money has been exchanged for “consent”.

Fourthly, when the accused is a minor, the case is tried under the Juvenile Justice Act where the law focuses on rehabilitation, not retribution. The punishments prescribed under the POCSO Act do not apply here so there is no question of amending the Act.

Lastly, consent is a nuanced theme. Courts ought to consider various factors — age gap between the accused and the victim, power dynamics, caste equations — on a case-by-case basis to assess/establish consent. In POCSO cases where consent is proved and the accused is an adult, the government can do away with the provision of the minimum sentence which is currently 20 years. Even for such cases, a blanket provision to reduce the age of consent is not the answer as it will result in girls facing threats to withdraw cases.

In conclusion, lowering the age of consent in the POCSO Act will have an extremely detrimental impact on any endeavour to provide justice to our children.

The writer is a Supreme Court lawyer and child rights activist