How courts are ‘creatively interpreting’ grey zone between minors & consent in POCSO cases
How does the law view consent among “children”? How does it treat, say, two 16-year-olds in a romantic relationship? What grey areas in the Protection of Children from Sexual Offences, or POCSO Act are leading to more families filing cases against teenage couples? These are all questions that, unfortunately, have no simple answers.
The Protection of Children from Sexual Offences Act, 2012
The Protection of Children from Sexual Offences Act, 2012 [“POCSO Act, 2012”] is legislation which aims at protecting children from all types of sexual abuse. Although the Convention on the Rights of the Child was adopted by the United Nations in 1989, the offences against children were not redressed by way of any legislation in India till the year 2012. It provides stringent deterrents for the commission of offences against children ranging from a minimum of 20 years of imprisonment to the death penalty in case of aggravated penetrative sexual assault.
The Objective Behind The Legislation
POCSO Act was welcomed as legislation that comprehensively dealt with crimes of sexual assault against children. This legislation was enacted to protect children from sexual offences. The objective of the Act was to protect the children so that he/she does not feel a sense of discomfort or fear and to create a child-friendly atmosphchild-friendly atmosphere this was stated by the Supreme Court in the case of Alakh Alok Srivastava v. UOI while interpreting the objective and purpose of the POCSO act. The legislation wants to secure the best interest and well-being of the children to ensure their healthy development takes place.
What is the Age of Consent ?
The age of consent is variable across the jurisdiction and the activities concerned. As an example for driving the minimum age is 18, for voting it is again 18 years, for marriage it is 21 years for a boy and 18 years for a female, for having sexual relationship the age cap is 18 years, and if the person has to drink alcohol then the age varies according to the jurisdiction.
Thus we can term it as the age when the law recognises that a person is able to make decisions for those particular activities. But a question arises from here. Is the legal age at which a person is able to make decisions similar to the actual age at which an adolescent becomes able to make decisions for himself/herself.
In a recent order [6], the Nagpur Bench of the Bombay High Court observed that the consent of a minor had no value in the eyes of the law. The court was hearing a bail application for a person accused of committing penetrative sexual assault on a minor girl. The accused had argued before the court that he and the victim had a “love affair” and that the girl had willingly eloped with him. The court found no evidence of consent in the victim’s statement.
The fact is that, as the law currently stands, even if there had been consent, it would not be available as a defence to the accused, considering that the victim was a minor. The POCSO Act 2012, by defining a child as a person below 18 years of age, fixes the age of consent at 18 years. It is important to note that this is not the first time that a high court has made such an observation. Last year, in another case [7], while recognising that a minor’s consent was not legally valid, the Bombay High Court noted that incidents of consensual sex between minors had been a grey area under the law.
Though courts have often deferred from the strict construction of the language of cases where a defence of consent by the victim is raised, cases of consensual relationships involving minors continue to pose a challenge for courts, especially when it comes to the issue of bail. While recognising that the law sets the age of consent at 18 years, high courts have still taken consent into consideration while granting bail.
Though courts have often deferred from the strict construction of the language of cases where a defence of consent by the victim is raised, cases of consensual relationships involving minors continue to pose a challenge for courts, especially when it comes to the issue of bail. While recognising that the law sets the age of consent at 18 years, high courts have still taken consent into consideration while granting bail.
‘Consensual’ POCSO cases
A judgement [8] passed by the Delhi High Court granted bail to the accused while taking into consideration the possibility of a reciprocal physical relationship between the accused and the minor victim. In another case, the Meghalaya High Court has held [9] that even though the consent of a minor has no legal validity, one cannot lose sight of the matter while a plea for bail is being considered by the court.
To deal with cases of consensual relationships between minors, courts are also “creatively interpreting” the provisions of the POCSO Act. In yet another case [10] of a “consensual” relationship, the Calcutta High Court acquitted the accused by interpreting a provision in the POCSO Act in such a manner that it would no longer apply to instances where sexual intercourse was voluntary. In this case, the high court remarked that the Act was introduced to offer protection to innocent children from sexual offences and a draconian interpretation of its provisions would merely convert it into a tool of abuse of the process of law.
Last year, the Madras High Court had said that the POCSO Act is not intended to penalise adolescents or teenagers in romantic relationships. While quashing the criminal proceedings against the accused in this case, the court recognised that a law to protect and render justice to victims and survivors of child abuse can also be misused. The court noted that a large number of cases filed under the POCSO Act seemed to be arising out of complaints registered by the families of adolescents involved in romantic relationships, which was never the objective of the law. Subsequently, similar concerns were raised by the Delhi High Court in yet another case.
What is the problem in judicial recognition of ‘consent’
The law in our country is crystal clear. If a person get into a sexual relationship with a minor then that person shall be held guilty under the provisions of POCSO Act. But still various High Courts have advised the legislature to amend the age of consent. And some went one step ahead by sidestepping the law and recognising the consent of adolescents.
In State v Akhilesh Harichandra[10] there was a minor girl. She ran away with the accused and married him. The special court here said that the girl was very much aware of what she was doing and whatever she did was of her own will. So here the court citing the decision of Bombay High Court acquitted the accused.
Consent is a very complicated thing to apply in a law. Like here we discussed how consent is important even if it is given by a minor. But this consent can also come from any type of coercion or societal pressure. So the court should also take care while interpreting the fact that the consent is genuine or it is forced.
Many times courts also interpret some action as a consent. Like if the victim went to any place with the accused, passive inaction or running away with the accused, then at many times special courts consider these acts as a form of consent. Hence the judiciary should be very careful in understanding the consent.
Creating awareness not enough
Noting the serious consequences of rigorous punishment prescribed under the POCSO Act, the Gujarat High Court, in another case [11], acknowledged the need to create legal awareness about the Act among children so that they do not inadvertently land in legal trouble. However, merely creating awareness among children will not solve the issues arising out of consensual relationships between teenagers.
In 2019, the Madras High Court discussed at length the problems arising due to the age of consent being set at 18 years and the social fact of the existence of romantic relationships between people falling below this age. The court held that the definition of “child” under the POCSO Act can be redefined as 16 years. It further called for the treatment of cases of consensual sex after the age of 16 under more liberal provisions, which could be introduced in the Act itself.
The concerns raised by these high courts are valid. The POCSO Act was enacted to punish sexual crimes against children and a different standard is required to deal with these relationships. It is the legislature’s, and not the courts’, responsibility to fix this anomaly in the law. The POCSO Act needs suitable amendments based on the realisation that consensual teenage relationships are a “social fact” and criminalising them is not helping anyone, especially children. A more nuanced approach is the need of the hour.
REFERENCE:
[1] https://blog.ipleaders.in/pocso-act-everything-you-need-to-know/
[3] POCSO ACT ,2019
[4] https://blog.ipleaders.in/short-guide-pocso-act/
[5] https://hindi.livelaw.in/pdf_upload/pdf_upload-377578.pdf
[7] https://indiankanoon.org/doc/33474305/
[8] https://indiankanoon.org/doc/166009004/
[9]https://www.livelaw.in/pdf_upload/ephinakhonglahvsstateofmeghalaya-404519.pdf
[10] https://hindi.livelaw.in/pdf_upload/pdf_upload-377578.pdf
[11] https://hindi.livelaw.in/pdf_upload/pdf_upload-377578.pdf
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
Article by Drishti verma