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POCSO not meant to criminalise consensual relationships: Delhi HC

Published: 17th Nov, 2022

Context

In a Judgement by the Delhi High Court, it has remarked that the intention of the Protection of Children from Sexual Offences (POCSO) Act was to protect children below the age of 18 from sexual exploitation and not to criminalise consensual relationships between young adults.

About

  • The POCSO Act, 2012 was enacted to safeguard the children’s interests and to protect them from sexual offences.
  • The act is gender-neutral and recognizes both girls and a boy as a victim of sexual violence.
  • This law defines a child as any person below the age of 18 years.
  • Forms of sexual offence: It defines different forms of sexual offences including;
    • Penetrative and non-penetrative assault
    • Sexual harassment
    • Pornography

What is the issue?

  • Difficult situation for young couples: Since the consent of a “child” is immaterial, consensual sexual intercourse with or among adolescents is treated on par with rape. However, with this, a number of young couples in consensual and non-exploitative relationships have found themselves embroiled in the criminal justice system.
  • Burdens judiciary:It also impacts the delivery of justice as these cases constitute a large burden on our courts.
  • Diversion from needy cases: It diverts attention from investigation and prosecution of actual cases of child sexual abuse and exploitation.

There is thus a compelling need for law reform to revise the age of consent and prevent the criminalization of older adolescents engaging in factually consensual and non-exploitative acts.

Few Other Interpretations:

  • Other than Delhi High Court, Punjab and Haryana High Court has also seen the issue of age of consent as a cause of unusual arrest of the older adolescents as accused of Rape.
  • Karnataka High Court quashed the criminal proceedings under IPC and observed that if the court would shut its doors to the couple who are married then the entire proceedings would result in a “miscarriage of justice”.

What is the purpose of the ‘Minimum Age’ of sexual consent?

  • To protect: The objective of the minimum age of sexual consent is to protect adolescents from sexual abuse. There is a possibility that young adolescents may be lured into sexual activity by older adults making those from disadvantaged settings.
  • Consequences of early sexual activity
    • impact on their rights and development
    • a number of risks in relation to sexual and reproductive health (unwanted or early pregnancy and exposure to sexually transmitted diseases)
    • impact on education, especially girls

What are the options available to victims in such matters?

  • The only relief available to the couple is to urge the High Court to quash the caseby using its inherent power under Section 482 of the Criminal Procedure Code, “to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Provisions of the laws relevant to the situation:

  • 7 years: Indian laws do not consider any action by a child under the age of 7 as an offence.
  • 7-12 years:Even if the child is between the ages of 7 and 12, but has not attained sufficient maturity to judge the nature and consequences of his conduct, his act would not be considered an offence.
  • After 12 years: After that, it is implied that a child above 12 years of age develops a sufficient understanding of the implications of an offence.

Changing scenario:

  • With the changing sociocultural scenario, the assumption of attaining maturitymay also be applied in cases of granting “free consent”.
  • One has to note here, that the Child Labour (Prohibition and Regulation) Act defines a child as a person under the age of 14, and, therefore, those above 14 can legally be employed in otherwise prohibited occupations and processes.

Global Scenario:

  • Many countries have 16 years or below that as the age of consent.
  • Most of the American states, Europe, Japan, Canada, Australia, China, and Russia fall into this category.
  • Therefore, the rights of the child (up to 18 years of age) might be protected in accordance with the UN Convention on the Rights of the Child, but the age of consent can safely be reduced from 18 to 16.
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