AGE OF CONSENT(POCSO ACT AND IPC)
1. Context
On November 4, the Dharwad Bench of the Karnataka High Court, while dismissing a case filed under the Protection of Children from Sexual Offences Act, 2012, said the Law Commission of India would have to rethink the age criteria, to take into consideration the ground realities.
2. Age of Consent
- The age of consent is the age at which a person can legally agree to have a sexual relationship assumed as He/She was under the age of consent. Under the Indian Penal Code, it is an offence to have sex with a girl below 18 years of age, regardless of consent.
- The exception to section 375 (rape) of the Indian Penal Code permits "intrusive sexual intercourse with a girl aged between 15 and 18 only on the ground that she is married".
- The exception is part of the Criminal Law (Amendment) Act of 2013. It is contrary to the protection of Children from Sexual Offences Act of 2012 (POCSO).
- A girl under 18 is treated as a child in POCSO.
- If she is married, she is no longer a child under the exception of section 375 of the IPC. This is inconsistent, As a girl under 18 is still a child, married or not.
3. Protection of Children from Sexual Offences (POCSO) Act, 2012
It is a comprehensive law for the protection of all children (aged below 18 years) from offences of sexual harassment, sexual assault, and pornography.
3.1 Features and Mandates
It provides speedy trials through special courts and child-friendly mechanisms at all stages of the judicial process.
Completion of Investigation in 2 months and trial within 6 months.
Provision of Fast Track Special Courts (FTSCs) to dispense quick justice.
Covers criminals who are in positions of trust and authority such as Police, Public servants etc.
3.2 POCSO (Amendment) Act, 2019
The act was made stricter by following amendments
1. Defining child pornography
2. Expanding the scope of aggravated penetrative sexual assault.
3. Enhanced provision of minimum punishment e.g. 20 years to life imprisonment.
4. Provision of the death penalty in some cases of aggravated penetrative sexual assault.
4. How has POCSO fared?
The enactment of POCSO has led to a system where many young couples in consensual and non-exploitative relationships have found themselves embroiled in the criminal justice system.
Since the consent of a "child" is immaterial under the POCSO provisions, consensual sexual intercourse with or among adolescents is treated on a par with rape.
It creates two different streams of law enforcement
- Usually, boys/young men are charged with sexual offences
- At the same time, girls are treated as victims and institutionalised in children's homes when they refuse to return to their parents or their parents refuse to accept them.
Faced with criminal prosecution and incarceration, the only relief available to the couple is to urge the High court to quash the case by using its inherent powers under Section 482 of the Criminal Procedure Code of the high courts. Section 482 of the IPC states " to prevent abuse of the process of any court or otherwise to secure the ends of justice."
5. POCSO Cases data and statistics
- An analysis by Enfold Proactive Health Trust in various states shows that of 1,715 "romantic" cases under the POCSO Act about 25% were decided by Special Courts.
- The parents and relatives of the girls constituted about 80 % of the total complaints who mainly resorted to complaints only after the girls went against their will.
- The victim and the accused were married to each other in only 46.5% of the cases.
- About 85% of girls declared their relationship to be consensual but only about 45% of such couples (victims and accused) were allowed to get married.
- The special courts acknowledged that about 60% of the relationship were consensual.
- About 80% of girls did not incriminate the accused and overall acquittals were recorded in about 94% of the cases.
6. Judiciary Reaction
- Many High Courts have recognised the normalcy of these relationships, the futility of prosecuting romantic cases, and marriage between the parties, as well as the harmful impact of continued prosecution on both parties.
- The Madras High Court observed in Vijayalakshmi vs State Rep (2021) that, " punishing an adolescent bot who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act".
- Similarly, the Himachal Pradesh High court allowed a petition filed by the minor girl's father for quashing the trial against his son-in-law on similar grounds of suffering to both parties.
- Meghalaya High Court also quashed a case in which a couple got entangled under the POCSO Act when the husband was major and the wife a minor was pregnant on similar grounds of familial relationship.
7. What Needs to be Done?
With the courts and rights activists seeking an amendment to the age of consent criteria, the ball lies in the government's court to look into the issue.
In the meantime, adolescents have to be made aware of the stringent provisions of the Act and also the IPC.
For Prelims & Mains
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For Prelims: Protection of Children from Sexual Offences (POCSO) Act, 2012, Age of Consent, section 375 of the IPC.
For Mains: 1. Should the age of consent be changed for adolescents? In light of the statement critically analyse the Protection of Children from Sexual Offences (POCSO) Act, 2012.
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Source: The Hindu
