The Pocso Statute And Consensual Relationships Between Minors

KEY TAKEAWAYS

• The Ministry of Women and Child Development approved a bill to protect children aged under 18 from sexual assault, harassment, and pornographic offenses and established Special Courts for the trial of such offenses.
• Indian law deems sincere consent for consensual sex between minors, and social activists believe that most of those charged are young men and teenage boys in consensual relationships with teen girls. The rule is often used to punish young people by families who do not approve of a relationship.
• The courts and government should work together to help define consent for youth.

INTRODUCTION

Sections 375, 354, and 377 of the Indian Penal Code (1860) made child sexual misconduct a crime. However, there was no specific law protecting children from sexual misconduct at the time. The need for such a law necessitated the promulgation of the Protection of Children from Sexual Offences Act, which was passed in 2012. 

The Act imposed harsh penalties for crimes against children. Section 6 of the Act states that a person who is accused of aggravated sexual assault shall be liable to rigorous imprisonment of 20 years, which may be extended to a life sentence.  

The fundamental purpose of the Act is to protect children by including procedures for child-friendly reporting, proof documentation, investigations, and speedy trials through Special Courts. The Act necessitates the establishment of special courts and processes to handle issues involving children as it places the greatest emphasis on the concept of 'best interests of the child.' 

THE AFTERMATH

POCSO has contributed to greater child abuse reporting and speedier litigation to provide victims with justice. The National Crime Records Bureau's most recent figures show that children are increasingly vulnerable, with over 1.49 lakh incidents of crime against children documented in 2021, a considerable increase from over 1.30 lakh occurrences in 2020.

[Attorney General for India v. Satish and another (2021)]

In Satish Ragde v. State of Maharashtra (2021), the Bombay High Court's Nagpur Bench  held that physical touch is necessary to constitute sexual assault under the Act. Following a backlash, a Supreme Court bench of Justices U.U. Lalit, S. Ravindra Bhat, and Bela M Trivedi heard appeals against the High Court’s decision. 

The Supreme Court, while setting aside the order, held that intent of the accused person is more necessary than the need for physical touch. The court said that the intent of the accused, if sexual in nature, should be enough to be convicted for sexual assault under the Act. 

Without question, the enactment of POCSO was an important and progressive step toward ensuring children's rights and strengthening the cause of protecting children from sexual assault. To combat child marriages, POCSO is sometimes utilized in combination with its sister legislation, the Prohibition of Child Marriage Act of 2006.

The legislation, which defines a child as anyone under the age of 18, is intended to protect kids from sexual abuse. When this act was created, the legislature aimed to give particular sentences for punishing sexual assaults against minors.

BARING THE THREAD OF CONSENT

Consent is defined under Section 375 of the IPC. It must be "unequivocal," "voluntary," and "willing," according to the definition, and the will must be clearly "communicated."

According to Section 90, "consent is not consent in the sense intended by any section of the Code if it is given by an individual under fear of injury or miscommunication of fact, and the person doing the act knows or has evidence to believe that the consent was provided as a result of such fear or lack of understanding."

Criminal Law (Amendment) Act, 2013: The amendment defines 'consent' as an explicit agreement to engage in a particular sexual act; it also suggests that an absence of objection is not considered consent. 

For sexual conduct to be consensual, everyone participating must be able to consent. In most circumstances, this suggests that everyone must be at or over the legal consent age of the region they are currently in. Sexual activity must be voluntary and between persons of the same age group in order to be lawful.

Two minors, for example, are unlawful, as are one minor and one adult. Both of these instances constitute statutory rape, which is a crime. If reported, the two children will be held accountable, and the male may be arrested. If there is only one adult present and one juvenile, the adult is the only one who will be arrested.

Since POCSO prohibits all sexual acts for people under the age of 18, consensual intercourse between teenagers, which has become the norm in today's culture, at least among city-dwelling teens, has come under the lens of the authorities. Despite this, the legal system has been slow to evolve. As a result, criminalizing any sexual conduct for persons under the age of 18 may present difficulties. Consideration of a 17-year-old child as a criminal worthy of heavy prison time, for example, because he had consensual sexual intercourse with a 16-year-old, is not an appropriate attitude. As a result, even well-intended legislation like POCSO might have unintended repercussions.

[Maruthupandi vs. State, 2021 (Madras HC)]

Apart from imposing an outdated moral attitude on children, another reason why consensual sex between minors has existed in an obscure legal area is what Indian law deems to be sincere consent. Despite the lack of concrete information on the ages of those charged under the law, social activists believe that a majority of those charged are young men and teenage boys who are in consensual relationships with teen girls. Because girls are often considered victims, they are rarely charged under the law. 

They are frequently seen to be incapable of providing consent, demonstrating the patriarchal side of the law. According to activists, the rule is frequently utilized by police and families to punish young people who do not approve of a relationship owing to a difference in caste, class, or religion. 

DRAWBACKS

Criminalizing consenting juvenile relationships that have been ongoing for a long period of time, on the other hand, may have an awful influence on the lives of young people, many of whom are unaware of the law.

Cases might take years before they reach trial; over 90 percent of POCSO cases remain unsolved. In addition, education is disrupted, careers are put at risk, and adolescents face prejudice for the rest of their lives, whether or not they are convicted. Some teenagers are held in juvenile detention centers until their petitions are heard in court.

Since medical professionals are required to report all teenage pregnancies to the police, the law could deter sexually active adolescent girls from seeking medical care in the event of pregnancy or sexually transmitted illnesses.

"Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender was never the goal of the POCSO Act," Justice N. Anand Venkatesh explained.

The significant number of acquittals also illustrates that when it comes to "romantic" cases, trial courts generally take an accommodating attitude. In recent years, the Indian Supreme Court has shown concern about the prohibition of sex that is voluntary among or with teenagers.

While reversing a teenager's conviction in 2019, Madras High Court Justice Parthiban stated that a connection between youngsters or adolescents and young people was "not abnormal" but a result of natural physical attraction and suggested reducing the age of consent.

Recently, Chief Justice of India Dhananjay Chandrachud weighed in on the issue, encouraging lawmakers to revisit the age of consent.

The Bombay High Court granted bail to 25-year-old Imran Shaikh for raping a minor girl, noting that the POCSO Act cannot be used. "The applicant was also a young boy of 22 years of age at the time of the incident," the court stated. According to the first informant's account, the connection was consensual.

CONCLUSION

Consent, in general, is not a difficult idea to comprehend. Keeping the law and the changing world in mind, courts and the government should work together to put the law in place for the long-term benefit of the youth.