Looking upon age of consent for adolescents

Context: Recently the Dharwad Bench of the Karnataka High Court, while dismissing a case filed under the Protection of Children from Sexual Offences Act, 2012, said the Law Commission of India would have to rethink the age criteria, to take into consideration the ground realities.

• The aspect of consent by a girl of 16 years, but who is below 18 years, would have to be considered, it said, if it is indeed an offence under the Indian Penal Code (IPC) and/or the POCSO Act.

About POCSO Act 2012:

• This comprehensive law provides for protection of children from sexual assault, sexual harassment and pornography, while safeguarding the interests of children at every stage of the judicial process through child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial through special courts.

Salient Provisions of the Act:

• “Children” according to the Act are individuals aged below 18 years. The Act is gender-neutral.
• Different forms of sexual abuse including but not limited to sexual harassment, pornography, penetrative & non-penetrative assault are defined in the Act.
• Sexual assault is deemed to be “aggravated” under certain circumstances such as when the child is mentally ill. Also, when the abuse is committed by the person in a position of trust such as a doctor, teacher, policeman, family member.
• The Act assigns a policeman in the role of child protector during the investigation process. The investigation and trial are to be done in a way to minimise further trauma on the child.
• Any case under POCSO is mandated to be disposed of within one year from the date of reporting of the offence.
• The Act provides for the establishment of Special Courts for the trial of such offences and matters related to it.
• The power to make rules lies with the central government. To monitor the implementation of the Act, the National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority. Both being statutory bodies.
• Section 42 A of the Act gives POCSO Act overriding powers over other acts.
• The Act calls for mandatory reporting of sexual offences. A false complaint with intent to defame a person is punishable under the Act.

Drawbacks of the POCSO Act:

• Under the POCSO Act, 2012, and under several provisions of the IPC, whoever commits a penetrative sexual assault on a child — anyone below 18 years of age — can be “imprisoned for a term which is not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.”
• Even if the girl is 16 years old, she is considered a “child” under the POCSO Act and hence her consent does not matter, and any sexual intercourse is treated as rape, thus opening it up to stringent punishment.
• There have been several instances in the past few years when the courts have quashed criminal proceedings of rape and kidnapping, after being convinced that the law was being misused to suit one or the other party.
• The act also does not recognise consensual sex between pre-adult teenagers, often putting the boy in this case as an accused of rape charges.

Misuse of the act:

• In its order, and several other courts have passed similar judgments too, the Karnataka High Court said the effect of such criminal prosecution of a minor girl or boy is causing severe distress to all concerned, including the families. Sometimes, disgruntled parents file a case to foil a relationship between two adolescents.
• In 2019, a study, Why Girls Run Away to Marry – Adolescent Realities and Socio-Legal Responses in India, published by Partners for Law in Development, made a case for the age of consent to be lower than the age of marriage to decriminalise sex among older adolescents to protect them from the misuse of law, sometimes by parents who want to control who their daughters or sons want to marry.
• The study noted that in many cases, a couple elopes fearing opposition from parents resulting in a situation where families file a case with the police, who then book the boy for rape under the POCSO Act and abduction with the intent to marry under IPC or the Prohibition of Child Marriage Act, 2006.

Case study: Vijaylakshmi vs State Rep case 2021

• The Madras High Court said the definition of ‘child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18.
• It said that any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act.
• The court suggested that the age difference in consensual relationships should not be more than five years to ensure that a girl of an impressionable age is not taken advantage of by “a person who is much older.

Way forward:

• With the courts and rights activists seeking amendment to the age of consent criteria, the ball lies in the government’s court to look into the issue.
  • In the meantime, adolescents have to be made aware of the stringent provisions of the Act and also the IPC.
• The Karnataka High Court Bench directed the Principal Secretary of the Education Department to constitute a committee to formulate suitable education material for adolescents on the law on sexual offences and its consequences.
• Adolescents have to be made aware of the stringent provisions of the Act and also the IPC.
• There is a compelling need for law reform to revise the age of consent and prevent the criminalisation of older adolescents engaging in factually consensual and non-exploitative acts.
• Even as activists are calling for a tweak to the POCSO Act, and raising awareness about its terms, a parliamentary committee is looking into the Prohibition of Child Marriage (Amendment) Bill, 2021 which seeks to increase the minimum age of marriage for women to 21 years.
  • Rights activists feel instead of helping the community, raising the age may force vulnerable women to remain under the yoke of family and social pressures.

Government should examine the provisions of the POCSO Act which are being misused and amend them. The principles of Right to life and survival and the best interests of all children concern, should be protected.

MUST READ: National Commission for Protection of Child Rights (NCPCR)

Source: The Hindu