The Meghalaya High Court recently quashed a POCSO case on the mutual consent of the survivor and the accused, who were 16 and 25 years old, respectively, at the relevant time, with two children. There is also a petition filed before the Supreme Court challenging the blanket criminalisation of adolescent sexual activities born out of the POCSO Act 2012.
POCSO raised the age of consent (AoC) from 16 to 18 years in India. It means that any person below the age of 18 is considered a minor and is unable to give consent legally. What this has done is to make all kinds of sexual activities involving anyone under 18 years of age, including adolescents (developmental category) or juveniles (legal category), a crime, by abolishing the distinction between ‘factually non-consensual and exploitative sex’ and ‘factually consensual and non-exploitative sex’.
Further, sections 19-23 of the Act prescribe mandatory reporting procedures to protect victims. It obligates any person, including the child and a medical professional, who knows or has reason to apprehend a POCSO offence, to immediately report it to the local police or the Special Juvenile Police Unit (SJPU).
A failure to report or record such an offence, as well as making a false complaint or providing false information, is punished with imprisonment or with a fine or with both, albeit exempting a child from this punishment provision.
Why blanket criminalisation?
Sex is as much a question of law as it is of politics. Individual freedom and communitarian rules are not always symmetrical. This appears in the case of adolescent love, as adolescents approaching the age of 18 do not follow the legislative mandate of ideal minorityhood most of the time. Based on data, it is apparent that a large volume of cases under POCSO are those where adolescents are involved in borderline age group relationships, which often do not have parental or familial approval.
In this sense, the Parliament’s intention behind this blanket criminalisation approach is both protective and paternalistic. It is protective in the sense that all children must be protected by the state from any form of sexual harm. At the same time, not realising that this approach controls the sexual autonomy of a large group of adolescents, thereby restricting their right to freedom to indulge in sexual exploration with the person one likes, makes it paternalistic.
Moreover, such widening of the criminal sanction net by making consent of a minor irrelevant to all kinds of sexual activities involving them under the Act makes POCSO offences overinclusive offences.
If offences are defined too broadly, then we risk criminalising conduct that does not deserve punishment, whilst if they are defined too narrowly, there is a danger of leaving out conduct that needs criminalising and punishment. What the POCSO Act has done is to conflate conduct that deserves and does not deserve the wrath of criminal law, thereby amounting to wrongful conflation.
Such an approach also goes against the harm principle, which argues for criminalisation of acts that cause harm to others, and not solely based on public morality. We are, moreover, risking treating unlike wrongs alike by imposing disproportionate punishments and blurring offence labels, which goes against even the foundational principles of criminal law, such as fair labelling and proportionality.
We must understand and acknowledge that adolescence is a unique biological, social, and psychological stage of human life recognised across the world, where there might be a desire to explore one’s own and others’ bodies. In her book ‘Hindu Wife, Hindu Nation’, Tanika Sarkar explores the surrounding debates around the Age of Consent (AoC) Act when the colonial government attempted to increase it from 10 to 12.
At that time, a large section of revivalist-nationalists, including Rabindranath Tagore and Bal Gangadhar Tilak, opposed it. So, what may amount to appropriate AoC can neither be pegged to a purely physical capability, nor can it have any universal yardstick, as in Denmark, it is 15 years. Increased AoC is also linked with emotional, mental and sexual compatibility, free choice of partner, and the increased age of life expectancy in the Western world.
However, life expectancy is not uniform across and within nations. In India, life expectancy among a few localised tribal groups is only 64 years. In such a scenario, forcing a Western norm may look awkward. In these situations, traditionalists seek to increase the AoC from 18 to 20 years, which is not based on harm or scientific outlook but draws its comfort in the traditional value system of imposing celibacy and prohibiting inter-caste or inter-faith marriages, whereas progressives seek to lower it from 18 to 16 to support individual autonomy.
Several child rights activists, scholars and organisations have highlighted the problems with this overinclusive and blanket criminalisation. The evidence suggests that a high percentage of acquittals in cases where the minor prosecutrix and the accused are alleged to be in a ‘romantic’ relationship with each other (or, de facto consensual relationships) also points, among other things, to the judicial intuition that such cases do not deserve the heavy hand of criminal law.
This was said even by the Madras High Court when, while quashing a POCSO case lodged against a man in his early twenties for having eloped with a teenage girl and consummated the relationship, it argued that POCSO does not intend to bring within its scope cases involving adolescent teenagers in romantic relationships.
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Weaponisation of criminal law
Weaponisation of POSCO cannot be ruled out, and even research has found several such instances. Young boys in the age group of 18-25 were charged and convicted of POCSO offences, sometimes along with the offence of kidnapping, for being in a sexual relation with adolescent girls. This has mostly happened in inter-caste/inter-faith relationships, rather than in family-arranged ones.
However, this has also happened in other cases where, despite belonging to the same religious or caste community, parents or relatives of the girl tend to file POCSO and kidnapping cases against young boys, merely because of the difference in class or the girl exercising her right to choose a sexual partner, in the name of ‘honour’.
The 2019 amendment has further worsened this abuse of the law. Here, POCSO is primarily used to enforce parental control over the choices of adolescent girls to maintain social and cultural norms and caste boundaries, rather than protecting them from the harm of early or forced marriages.
There has been a mixed response from the higher judiciary in such cases, making the implementation of the POCSO law non-uniform, thereby adversely affecting legal certainty and the rule of law. The proposal of lowering AoC has also been communalised. Last year, an NCPCR official, upon the Supreme Court’s dismissal of petitions by NCPCR and NCW challenging Punjab and Haryana High Court orders that recognised the validity of marriages of Muslim girls after attaining puberty, said, “This was akin to running the country on the basis of Sharia.”
The prevalence of child marriage in India is strongly correlated to structural and institutional inequalities, including poverty and lack of access to healthcare and (sex) education, rather than a child’s religious background per se. An example is how Kerala’s Muslim women tend to have the same or lower fertility rate than UP’s Hindu women.
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Way forward
Penology must be rational and directed towards constitutional ends. In this context, Article 19 gives the right to privacy, and the development of sexual orientation is part of it. Consensual relationships among adolescents are an intimate aspect of their personality. The logic of 18 years is linked to the age of marriage, and hence its telos remains that legitimate sex means only reproductive sex, whereas it conceptually attempts to erase the idea of pleasurable sex.
Factually consensual and non-exploitative sexual acts involving adolescents between 16 and 18 years shall be decriminalised. While close-in-age exemptions and judicial discretion have been proposed as alternatives to blanket criminalisation, neither approach fully addresses the lasting trauma and disruption caused by the process of arrest, trial and institutionalisation.
These alternatives fail to acknowledge the inherent harm of criminalising normative adolescent sexual behaviour and risk arbitrary outcomes. Decriminalisation, coupled with clear grounds for vitiated consent and adolescent-friendly support systems, access to sex education, sexual and reproductive health services, and sensitisation of legal and child protection functionaries to uphold adolescent autonomy and dignity, seems to be the most just and effective approach.
Shailesh Kumar is a Lecturer at the Department of Law & Criminology, Royal Holloway, University of London, and a Commonwealth Scholar. Aklavya Anand is an Assistant Professor at the Faculty of Law, University of Delhi.
Views are personal.
(Edited by Saptak Datta)