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POCSO and Judicial Discomfort
While the Protection of Children from Sexual Offences Act, 2012 was ostensibly introduced to combat child sexual abuse, its overbroad provisions have made it possible to criminalise even consensual sexual acts and has caused judicial discomfort. This column examines three different orders of high courts across the country where such judicial discomfort over the strict application of the POCSO has been expressed.
June 2022 will mark one decade of the coming into force of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The law defines a “child” as any person below the age of 18 years, and unlike Section 375 of the Indian Penal Code (IPC), it does not define or use the term “consent” anywhere. The contrast with the IPC is necessary to point to the specific changes brought about by the POCSO and the implications of the same. At the time the POCSO was introduced, the “age of consent” for unmarried girls was 16; it was presumed that anyone younger than this age could not lawfully consent to sexual intercourse. The POCSO raised the age of consent to 18 years and later, following the recommendations of the J S Verma Committee, Section 375 of the IPC was also amended by the Criminal Law (Amendment) Act, 2013. However, as has been clarified by the Supreme Court of India in Independent Thought v Union of India,1 POCSO being the special legislation on the matter of child sexual abuse (CSA) will prevail over the IPC, in case of any inconsistency. While this was held in the specific context of the exception for marital intercourse under the IPC, nonetheless, the principle applies in general to the POCSO as well.
The presumption in law that any person below the age of 18 cannot possibly consent to sexual intercourse, is problematic to say the least. Those below the age of 18 are considered competent to contract and technically even marry2 suggesting that the presumption of law—that minors are incapable of giving consent—is not absolute. In the specific situation of the POCSO, the provisions make reporting of the crime a legal duty, punishable under law for failing to do so. This is irrespective of whether there was consent, in fact. The possibility that the POCSO might end up criminalising consensual adolescent relationships was something that was raised even as the law was passed (Raha 2014), and as recent data and studies have shown, it has been used to punish inter-caste and inter-religious relationships.
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