New Delhi: “For the sin of falling in love with a girl below 18, a man is criminalised by arrest and prosecution under the stringent provisions of the POCSO Act.”
These were the Madras High Court’s words as it asked the police in Tamil Nadu and Puducherry to not show “haste” in making arrests under the Protection of Children Against Sexual Offences (POCSO) Act in case of “mutual romantic relationships”.
In a letter to the Director Generals of Police of Tamil Nadu and Puducherry, the registrar general of the Madras High Court said investigating officers can issue notice to the alleged suspect in the case and conduct an inquiry but can only make any arrest with permission from the Superintendent of Police.
The instructions, dated 1 December, came after a series of state-level consultation meetings held between the high court’s juvenile justice committee, the POCSO committee and other government agencies and stakeholders.
Its implementation, however, could pose a challenge, say senior police officers and legal experts.
The letter, which ThePrint has accessed, quoted the juvenile justice committee as having observed that “60 per cent of the POCSO cases that are registered relate to mutual romantic relationships”.
Most of such cases are registered among tribal communities in hilly areas, the letter says, adding that such police actions may “alienate tribals”.
“In several adivasi and tribal cultures, it is not a taboo for a male to marry a girl who is less than 18 years of age,” the juvenile justice committee said, according to the letter. “The State is encouraging the tribals to use the facilities in government hospitals for delivery for good reasons. When a 17-year-old tribal wife goes for delivery to a government hospital, information is sent to the police, a case under the POCSO Act is registered against her husband and he is arrested.”
The committee said that continued police action in such cases could make tribal women more reluctant to use healthcare services for institutional delivery. It also observed in many such cases, marriage between the alleged accused and survivor leads to acquittal.
The development comes at a time when there are growing calls among lawyers and social activists to keep consensual relationships out of the ambit of the POCSO Act.
Section 19 of the POCSO makes it mandatory for anyone — including medical officers in hospitals — to report any incident of alleged sexual assault involving a “child”, regardless of the minor’s consent.
Police must, in all such cases, register an FIR against suspects under this law which defines a child as “anyone below the age of 18 years”.
The high court’s directions have, however, left senior police officers perplexed over its execution.
A senior Indian Police Service (IPS) officer serving in Tamil Nadu told ThePrint it was “a complex matter in terms of implementation”. “The directions talk about (making) no haste in arrest if a mutual romantic involvement is found. But the Act says otherwise,” he said.
“Many times, (it’s) the families (that) lodge FIRs under POCSO if there is an instance of elopement involving a minor girl or pregnancy of an unmarried minor girl.”
At other times, it’s the hospitals that report underage pregnancies, he said.
Then there are cases of rape or sexual assault. “We get cases in which a minor, despite being in a love relationship, gets assaulted by her partner. So the issue of consent comes too,” he said. “We can take calls on a case-to-case basis, but the instructions need to have more clarity. There is no discretionary power given to the police. If we don’t pick up the accused, there are chances of them absconding.”
Legal experts, meanwhile, see the latest directions as “humane” but add that the police must investigate all such allegations and use their discretion while making arrests.
“This is a very important issue. Even if we want to punish the culprits, we also need to ensure that minor girls do not feel scared or intimidated in seeking help from hospitals,” Geeta Luthra, a senior advocate in the Supreme Court, told ThePrint.
She, however, agreed that when it comes to implementation, there could be challenges.
“The implementation of such instruction may be complex as there are several aspects to it. In many cases, despite being in a love relationship, sexual assault happens,” she said. “So, the girl has to understand consent. There should be a mechanism to educate young adults.”
(Edited by Uttara Ramaswamy)