In Union Budget presented on February 1, Rs 200 crore has been allocated for Fast Track Special Courts (FTSCs). The scheme for setting up 1,023 FTSCs across India was launched in 2019, of which 389 would exclusively deal with the Protection of Children from Sexual Offences (POCSO) cases. The same year, Parliament also cleared a Bill amending the POCSO Act to provide for greater punishments.
Speaking on the Bill then, Minister of Women and Child Development Smriti Irani highlighted that owing to a rise in pending cases across India, fast-track courts would be set up to ensure that “justice is delivered to every child victim in the country”.
Participating in the debate, Rajya Sabha MP Abir Ranjan Biswas was the lone voice that cautioned against harassment under POCSO, arguing that it was being used to “cover up” cases of elopement or inter-caste marriages. Irani responded that the age of consent under POCSO was as per recommendations of the parliament committee report on the POCSO Bill 2011. This Bill recognised consent of adolescents in the age group of 16-18, comprehensively defined, as a consideration in deciding whether an act amounted to sexual assault. The government even defended this provision before the committee.
However, the committee argued that since a child has been defined as a person below 18 years of age, their consent cannot be a deciding factor. This has been the position for the past decade, even as there is ample evidence that Biswas’ fear was not unfounded, and the time has come to consider reviving the clause that consent from those in the age group of 16-18 be considered.
A Wider Net
By criminalising consensual sexual relationships among adolescents, POCSO ended up casting a wider net than its intended purpose. A report published by a child rights NGO, Enfold, in June, analysed 1,715 POCSO judgments of consensual relationship cases from Maharashtra, West Bengal, and Assam between 2016 and 2020, and found explicit consent by the girl in 86 per cent of the cases. It also found that in 80 per cent of the cases, it was either the parents or relatives of the girl, who filed a complaint after the girl left home, went missing, or became pregnant.
In many cases, families knew about the relationship and were perhaps motivated by fear, shame, stigma, patriarchal notions, and moralistic emphasis on female virginity when filing complaints. In 63 per cent of the cases, the POCSO court recognised the consent of both parties which reflected in the outcome of the case invariably leading to acquittal.
Highlighting The Problem
Based on a petition it received in 2017, the Rajya Sabha Committee on Petitions, in 2019, submitted a report on the effective implementation of POCSO. The petition, among other things, prescribed two age groups: children below 12, and between 12 and 18 years of age. For the latter, it suggested closer investigation to prevent misuse. The committee drafted a detailed report on all aspects of the implementation but did not look at the element of consent or misuse of the law, which was a missed opportunity.
In December, the Parliament Committee on Law and Justice in its 123rd report noted that the FTSCs were ‘fast’ only in name and did not result in bringing down the burden of POCSO cases. Here it was noted that in 2020, the National Productivity Council conducted an evaluation of the effectiveness of the FTSCs, and recommended further strengthening of infrastructure, including forensic labs, for quick disposal of cases. Yet again, an opportunity to study the burden of consensual cases was missed.
In the Winter Session of Parliament, Rajya Sabha MP Binoy Viswam asked whether the government was considering lowering the age of consent under POCSO to prevent the criminalisation of consensual sexual relationships between teenagers. The government responded in the negative.
Vandana Chavan, another Rajya Sabha MP, raised the issue of urgently revising the age of consent under POCSO to prevent the criminalisation of romantic and non-exploitative relationships among adolescents, and to prevent misuse of the law by parents to punish adolescents for exercising autonomy. Thirteen other MPs are associated with this issue, but the government is yet to respond.
During the course of research for this article, the authors found that most questions asked in Parliament on POCSO or child sex abuse are focused only on asking about the quantum of offences, pendency, funding, and fast-tracking the procedures. These are crucial aspects, but so far, no question has been raised on the impact of the law on the agency and autonomy of adolescents.
Speed Is Not The Answer
In the ongoing Parliament session, it is hoped that the MPs will undertake a constructive criticism of the Rs 434.56 crore released for the FTSCs since 2019, and the Rs 971.7 crore pledged till March. The limited impact of the FTSCs on the growing pendency of POCSO cases, which, as per the NCRB’s report, stood at 2,05,034 at the end of 2021, growing from 1,70,271 in 2020 and 1,33,068 in 2019, must be brought up.
Research indicates that simply increasing the strength of judges doesn’t translate into higher case clearance.
Therefore, the increasing burden of criminalisation of consensual cases on the justice system and the lives and agency of adolescents must be thoroughly debated by Parliament. Fast-tracking justice is a relevant policy, but it’s not a panacea, and must not become the carpet under which the more complicated legal, societal, and structural issues are swept.
(Maansi Verma is a lawyer and founder of the Maadhyam initiative. Shivangi Shikhar is a social worker and researcher, Centre for Child Rights & Juvenile Justice, NLU Delhi.)
(Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.)