Shivani, a 16-year-old, first found out about the Protection of Children from Sexual Offences Act (POCSO Act) last year when her 17-year-old boyfriend mentioned in jest how he could be prosecuted for being physically intimate with her.
“I was shocked to learn that my boyfriend could go to jail for a consensual act, it seemed extremely unfair to me,” she says.
For adolescents in India, POCSO looms large over their right to sexual expression in consensual relationships. A child, according to the Act, is anyone who is aged below 18 years, and cannot consent to any sexual activity.
“By labelling my age-mate as a perpetrator and me as a victim, the law strips me of my right to sexual agency and autonomy,” says 17-year-old Pooja who has been in a relationship with her school classmate for the last two years.
Also read | Criminalising consensual relationships
Protection or restriction?
The blanket criminalising of such consensual sexual acts is not aligned with the social reality of normal sexual exploration among teenagers. “Despite the law, we are engaging in consensual forms of physical intimacy. Instead of criminalising such activities, we should be taught how to keep ourselves safe and secure in such situations,” says Arjun, a class 11 student. He adds that access to resources which promote safe sex and help navigate interpersonal relationships must be readily available to them.
For some, the restriction is a fair bargain to protect children from sexual exploitation. “I have no problem with the existing law as it seeks to protect minors. Even though I am dating someone, I believe in maintaining certain personal boundaries. I have decided to not engage in any sexual relationship until I turn 18,” says 16-year-old Aditi.
Although POCSO was enacted to protect children from sexual harassment, its unintended effect has been the criminalisation of romantic relationships between consenting young adults —upending young lives in a web of criminal prosecutions.
“I kept telling my parents and the police that we were in a consensual sexual relationship but no one listened. Everyone believed that I had been misled and taken advantage of,” Ritasha, 16, says recalling what transpired after her mother caught her and Rajiv together. Following the incident, Rajiv was sent to a juvenile home on charges of rape while Ritasha was made to discontinue her education.
According to a study conducted by Enfold Proactive Health Trust, ‘romantic cases’ (where the relationship was consensual, according to the girls, their family members, or the court) constituted 24.3% of the total cases registered and disposed under POCSO between 2016 and 2020 by special courts in Assam, Maharashtra and West Bengal.
Pointing out that it is natural for adolescents to want to sexually experiment, Delhi High Court judge Justice Jasmeet Singh last month underscored that the over-criminalisation of adolescent love under POCSO needs to be addressed.
Highlighting that POCSO reinforces the stereotype that only the girl child can be sexually abused, the Chief Justice of India (CJI) DY Chandrachud last year urged Parliamentarians to reconsider the issue of the age of consent as it posed difficulties for judges examining cases of consensual sex involving adolescents.
Age of consent — distant from societal realities
The Karnataka High Court last year urged the Law Commission of India to rethink the criteria for age of consent by “taking into consideration the ground realities.” The court said that it was motivated to make this recommendation after encountering several cases involving minor girls over 16 (but below 18) who fell in love and eloped with their lovers, and wondered why the consent of the girl in a sexual relationship is not factored in. The High Court judges also asked if it could be presumed that minors have knowledge of the applicable law.
In 2021, in the Vijaylakshmi v. State Rep case, the Madras High Court, dismissing a POCSO case, proposed that the definition of ‘child’ under Section 2(d) of POCSO be redefined as 16 instead of 18. The court also suggested that the age difference in consensual relationships should not be more than five years. This, it said, will ensure that a girl of an impressionable age is not taken advantage of by “a person who is much older.”
In 2019, a study titled ‘Why Girls Run Away To Marry – Adolescent Realities and Socio-Legal Responses in India’, made a case for the age of consent to be lower than the age of marriage to decriminalise sex among older adolescents and protect them from the law’s misuse by disgruntled parents seeking to control who their daughters or sons marry.
The existing age of consent also fails to take into account adolescent sexuality. According to the NFHS-5, 39% of women had their first sexual experience before turning 18. The same survey reports contraception use by 45% of unmarried girls between 15-19 years.
Notably, the Juvenile Justice (Care and Protection of Children) Act, 2015, allows children aged between 16 to 18 to be tried as adults for heinous offences. This raises a pertinent question — if the law allows an adolescent to be treated as an adult as far as committing heinous offences is concerned, why can’t the same adolescent consent to sex with the understanding and capacity of an adult?
Negating such concerns, Union Women and Child Development Minister Smriti Irani in December last year stated in the Parliament that the question of reconsidering the age of consent does not arise.
If the age of consent is nevertheless lowered to 16, laws that run parallel to the age of consent must also be modified to accommodate the change. For instance, the legal age of marriage is set to be raised to 21 post the enactment of the Prohibition of Child Marriage (Amendment) Bill, 2021. Thus, lowering the age of consent without changing the age of marriage would imply that a teen aged 16 is mature enough to enter into a consensual sexual relationship, but a 20-year-old or an 18-year-old is not mature enough to marry as per their choice.
Gender stereotypes and psychological impact
POCSO furthers the gender stereotype that girls are ‘victims’ incapable of agency, maturity, or understanding, and their male partners are ‘perpetrators of child sexual abuse’. The law disregards the likelihood of a minor girl engaging in sexual activity voluntarily — depriving them of their right to sexual autonomy conferred by Article 21 of the Constitution.
Such protectionist provisions also become an instrument to induce fear, control expressions of sexuality and punish adolescents for relationships that their families do not approve of. This is evinced by the abnormally high acquittal rates (93.8% in romantic cases) and the fact that the girl did not say anything incriminating against the accused in 81.5% of the cases as per Crime in India, 2021.
“Being curious about sex is a part of normal adolescent development. Considering only the girl as an aggrieved party perpetuates gender stereotypes —young girls can also initiate sexual intercourse and have a right to a sexual identity,” says Dr. Rima Mukerjee, a psychiatrist.
Editorial | Considering consent: On POCSO Act and the age of consent
Once the sexual act is confirmed, charges under POCSO are slapped on adolescent boys who are by default treated as children in conflict with the law and can even be tried as adults. The girls on the other hand are sent to government institutions when they protest parents’ strong disapproval of their relationships.
In the Vijaylakshmi case, the Madras High Court recognised that “adolescent romance is an important developmental marker for adolescents’ self-identity, functioning and capacity for intimacy” and observed that adolescents need to be supported, not criminalized.
Conviction for statutory rape and prolonged incarceration as a result of consensual romantic relationships can leave adolescents with immense psycho-social trauma. “This traumatic experience can change the adolescent boy’s attitude towards intimacy for life and can have long-term psychological effects. Counselling is very important for adolescent boys during their stay at juvenile homes,” Dr. Mukerjee added.
Mandatory reporting and access to reproductive health services
Under section 19 of POCSO, reporting child sexual abuse to law enforcement is mandatory for anyone who has an apprehension of such an act being committed or has any knowledge of such a case.
Failure to report is punishable with imprisonment that may extend to six months, or fine, or both under Section 21 of the Act. Anyone, including health care professionals, counsellors, and social workers, , is obligated to report to the police if adolescents below the age of 18 years seek advice or services for pregnancy care or termination, contraception, treatment for sexually transmitted diseases or display any signs of sexual activity.
This impedes adolescents’ confidential access to critical sexual and reproductive health [SRH] information and services. Adolescent girls risk a criminal case being lodged against their partner if they approach doctors for safe termination of pregnancy, pushing them towards unsafe abortions or deliveries.
“I don’t visit a gynaecologist out of fear that she might find out that I am sexually active and report my case to the police. Even when I have medical problems, I just ask older cousins in my family for help,” says Shivani.
Importantly, the Independent Expert for the United Nations Secretary General’s Study on Violence Against Children recommends that mandatory reporting systems should be framed as a “help-oriented service offering public health and social support rather than as being primarily punitive.”
In a bid to abate some of these concerns, the Supreme Court in a landmark ruling last year significantly curtailed the scope of mandatory reporting under POCSO and balanced it with the confidentiality requirement under the Medical Termination of Pregnancy Act, 1971 (MTP Act). The court held that any doctor providing an abortion to a minor does not have to disclose the name of the minor while reporting the case to the police or in any other subsequent court case.
“The taboos surrounding pre-marital sex prevent young adults from attempting to access contraceptives. Young girls who have discovered they are pregnant are hesitant to reveal this to their parents,” the verdict acknowledged.
However, according to child rights lawyer Anant Kumar Asthana, although well intended, in reality, the implementation of the judgment is difficult. “It is practically not possible to report a case of possible child sexual abuse to the police without divulging any personal details of the minor. If the identity of the minor is revealed, then they can still be forcefully mandated to take part in the criminal justice system against their will,” he says.
He added that there is an urgent need to train police officers to deal with the process of mandatory reporting in a sensitive manner keeping in mind the needs of the child. “If a parent goes to the police station under the apprehension that their child might be a victim of sexual abuse, the police authorities must know how to make a non-threatening intervention. In a lot of cases, the parents are simply asking for help, they don’t want any penal action to be taken against the child. The best interests of the child must be kept in mind — for instance, it must be seen that the child is not made to leave school,” Mr. Asthana explained.
The way forward: changes in law and empowering teenagers
In order to tackle the rising number of cases involving consensual romantic relationships, Tamil Nadu Director General of Police (DGP) C Sylendra Babu last year issued a circular instructing police officials to not show haste in arresting youths in POCSO cases. The decision was taken in the wake of a State-level consultation meeting involving the Juvenile Justice Committee, the POCSO committee of the Madras High Court, and other stakeholders in Tamil Nadu and Puducherry pertaining to the Act’s implementation.
The South African Constitutional Court in 2013 struck down a law criminalising underage consensual sex for violating children’s right to dignity, privacy, and best interests. It underscored that risky sexual behaviour is best addressed through comprehensive sex education.
Countries such as the United States, Ireland, and France among others have adopted ‘close-in-age’ exemptions, commonly known as ‘Romeo and Juliet’ laws, that permit a person to legally have consensual sex with a minor provided that he or she is not more than a given number of years older, generally four years or less.
According to Mr. Asthana, India requires a new law that accounts for multiple realities considering the diversity of customary practices. “India is not a homogenous society — a one-size-fits-all approach will not work. Many tribal communities have marital practices and customs that go against the provisions of POCSO,” he says.
Batting for increased judicial discretion, he added, “When the law fails to respond to the changing times, the safest guarantee is the judge. Judges need to be given more discretion at every stage of the punitive process so that the purpose of the law is not defeated.”
Comprehensive sex education is vital to bridge knowledge gaps and build positive attitudes so as to enable adolescents to make informed decisions, says Dr. Mukherjee. She highlighted that there is moral panic around the sexuality of young people and that most parents are hesitant to talk about safe sex and contraception with children, for fear of “encouraging their children to indulge in sexual relationships.”
Schools must also endeavour to conduct workshops on POCSO and sex education so that vulnerable adolescents have access to authoritative information that is evidence-based and age-appropriate. “There has neither been any workshop conducted on POCSO nor on sex education in our school. Whatever information we have gathered is through internet sources,” says Arjun, who is enrolled in a school in Lucknow.
(All names of minors have been changed to protect identity.)
