POCSO: The law must change, but its intent shouldn’t be diluted

Yashaswini Basu and Raghunandan Sriram

Assessing the decade-long implementation of the POCSO Act reveals an anomaly – the same law that aims to protect the rights of minors is being weaponised to wrongfully implicate certain minors by criminalising any and all forms of consensual sex between adolescents. The POCSO Act pegs the age of consent at 18 years, indiscriminately rendering anyone younger incapable of giving sexual consent. Therefore, irrespective of consent, sexual acts among minors are deemed ‘statutory rape’. This has resulted in the undue criminalisation of romantic relationships among adolescents.

Read | POCSO Act: Punishing young love?

Vidhi’s 'A Decade of POCSO' report reveals that the stringent criminalisation of adolescent sexuality causes more harm than good. One in every three POCSO cases ends in an acquittal and in 48.66% of the cases, the accused were friends or romantic partners of the victims. Similarly, a report by the UNFPA, UNICEF and Enfold highlights that in 87.9% of the so-called ‘romantic’ cases, the victim herself admitted to being in a ‘consensual’ relationship with the accused. Further, the existence of a prior romantic relationship and expression of ‘consent’ by the victim has been the most common ground for acquittal, quashing of FIR or reducing the punishment. It was also observed that in 15.2% of the cases which eventually ended in cquittal, the accused remained incarcerated until the end of the trial.

Currently, the POCSO Act does not factor in adolescent sexuality, which is a natural part of the development and transition of persons from childhood to adulthood. Studies have revealed that most males and females turn sexually active at around the age of 15 due to physiological, specifically hormonal, changes upon the onset of puberty.

Under the POCSO Act, both parties in adolescent relationships are treated as the ‘offenders’ as well as the ‘victims’, and may be either tried as minors by the Juvenile Justice Board or sent to the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act.

POCSO cases involving adolescents are often filed by the parents of the female party, who disagree with their daughters’ choice of partners, especially when relationships are formed outside the boundaries of caste or religion. The misuse and abuse of the legislation, fuelled by patriarchal, social and cultural biases, often denies and deprives adolescents of their bodily autonomy. This also has a deep-rooted impact on the reproductive and sexual health of young girls. Fear of prosecution under the POCSO Act often compels them to hide pregnancies and resort to sub-par medical services.

While the criminalisation of adolescent sexuality is detrimental, lowering the age of consent across the board may also have its own set of dangers. The law must change, accounting for the fact that early sexual maturation is on the rise, at the same time ensuring that its inherent intent is not diluted. What is needed is a nuanced approach.

A viable reform is a ‘close-in-age’ exemption, as has been introduced in Canada, whereby sexual acts between consenting partners who fall below or on opposite sides of the age of consent, but within a specified age difference, are not prosecuted. A five-year exemption with an age floor of 16 years was suggested by the Madras High Court in 2019. For instance, a 16-year-old may legally consent to sexual activity with a person between the ages of 16 and 21. Such a close-in-age exemption may be enacted by inserting a section in the chapter on Sexual Offences Against Children in the POCSO Act, stating that nothing in the chapter would apply to consensual acts between a person not below the age of 16 years and a person not more than five years older. Moreover, the age of maturity in the case of marriage must necessarily be demarcated from the age of sexual consent. Finally, awareness about personal safety among young adults must be bolstered.

A reform of the POCSO Act to exempt sexual acts among consenting adolescents, as proposed above, would go a long way in recognising the bodily autonomy of adolescent minors and preventing the persecution of adolescent majors in such relationships.

(Yashaswini is the Outreach Lead at Nyaaya and Raghunandan is a Research Fellow at Vidhi Centre for Legal Policy.)