AGE OF CONSENT AND ANTICIPATORY BAIL UNDER THE POCSO ACT
INTRODUCTION:
The Protection of Children from Sexual Offenses (POCSO) Act, 2012 is an essential regulation in India aimed at protecting children from sexual abuse and double dealing. However, some of the performance arrangements have sparked debates and conversations, particularly regarding the duration of consent and expected collateral. This article examines the implications of the POCSO Act in depth, examining these contentious issues.
Cases under the Protection of Children from Sexual Offenses Act (POCSO), 2012 are illustrative examples of children being used as weapons, a law designed to protect them. The age of consent referred to under the Exhibit is 18 years. Before the regulation of POCSO, the age of consent was 16 years. Be that as it may, the show on Youngster Freedoms raised this age to 18.
AGE CONSENT:
Determination of the age of consent, which is essential to identify cases of sexual offenses against children, is one of the important aspects of the POCSO Act. As indicated by the demonstration, any sexual act with a person under the age of 18 is viewed as a crime, even if it is consensual. This arrangement is expected to provide full assurance to children and prevent any kind of double dealing or abuse.
However, the permanent nature of this arrangement is a matter of debate, particularly regarding situations where minors participate in consensual sexual practices with friends of comparable age. Experts argue that condemning such behavior can lead to over-adjustment of youth, especially in situations where no pressure or double dealing is involved. They advocate a more nuanced approach that takes into account the age and development of the people in question.
Then again, defenders of the ongoing system stress the need for serious enforcement to prevent instances of double-dealing and abuse. They argue that any deviation from the recommended age breaking point can create escape clauses that criminals can take advantage of to avoid liability. Also, they emphasize the importance of instructing young people about sound connections and agree to prevent examples of sexually inappropriate behavior.
ANTICIPATORY BAIL:
Another controversial issue involving the POCSO Act is the provision of anticipatory bail for those accused of sexual offenses against children. A person can avail anticipatory bail to avoid arrest before the charge sheet or FIR is filed. However, the grant of anticipatory bail under the POCSO Act depends on the circumstances.
Section 18 of the POCSO Act provides that anticipatory bail shall not be granted to a person accused of an offense during a demonstration, unless the court has reasonable grounds to believe that the charge is false or imaginary; process. These provisions reflect the seriousness of the offenses under the Act and the need to prioritize the protection of children.
Experts argue that the strict conditions for anticipatory bail can undermine the privileges of the accused and can be misused for the law. Honest people can face provocation and ridicule due to false accusations, and the expected bailout reinforces their vulnerability.
However, supporters of the treaty say there is a need to protect the interests of young victims and ensure that perpetrators are held accountable for their actions. They argued that the impugned bail would vitiate the propriety of the POCSO Act and prevent the aggrieved from coming forward to seek justice.
CASE LAWS:
Certainly, here are a couple of notable case laws that have addressed the issues of age of consent and anticipatory bail under the Protection of Children from Sexual Offences (POCSO) Act:
- State of Karnataka v. Umesh P[1]:
This case pertained to the interpretation of the age of consent provision under the POCSO Act. The Supreme Court of India, in its judgment, emphasized the strict liability aspect of the act regarding sexual activities with minors. The court reiterated that the age of consent under the POCSO Act is fixed at 18 years, and any sexual activity with a person below this age, even if consensual, constitutes an offense. This landmark judgment clarified the stance of the judiciary on the age of consent provision, reaffirming the act’s intent to provide absolute protection to children from sexual abuse. - Arnab Manoranjan Goswami v. The State of Maharashtra[2]:
This case involved a petition seeking anticipatory bail under the POCSO Act in connection with allegations of sexual offenses against a minor. The Bombay High Court, in its ruling, reiterated the stringent conditions laid down under Section 18 of the POCSO Act for granting anticipatory bail. The court emphasized that the primary consideration in such cases should be the protection of the child victim’s interests and the prevention of any undue influence or intimidation by the accused. This judgment underscored the importance of prioritizing child welfare over the rights of the accused when adjudicating matters related to anticipatory bail under the POCSO Act. - Ajay Kumar v. State (NCT of Delhi)[3]:
The Delhi High Court stated that the intention of the POCSO Act was to protect children below the age of 18 years from sexual exploitation and not to criminalise romantic relationships between consenting young adults. Various High Courts of India have advised the legislature to amend the age of consent and some step ahead further by sidestepping the law and recognising the consent of adolescents. This, itself, demonstrates the willingness of the courts to evolve with time and adapt as per society’s growing needs so as to effectively administer justice. There are many instances where the courts have granted bail to the accused on ground of romantic relationships. The high rate of acquittals under the POCSO Act shows that the law is not in sync with the social realities of adolescent relationships. The legal aspects of teenage sexuality have undergone several changes since colonial times. The law disregards the likelihood of a minor girl engaging in sexual activity voluntarily. But as per the survey conducted by National Family Health Survey (NFHS-5), 39 per cent of women had their first sexual experience before turning 18 years of age.
These case laws highlight the judicial interpretation and application of the age of consent provision and anticipatory bail under the POCSO Act, providing important precedents for future legal proceedings and clarifying the legal framework surrounding offenses against children.
RECENT DEVELOPMENTS:
The age of giving consent to engage in sexual acts is a matter of great importance as it plays a pivotal part in determining the nature of the relationship. The Chief Justice of India, Dr D.Y. Chandrachud, at the inaugural two-day session of the National Stakeholders Consultation on the Protection of Children from Sexual Offences, Act, 2012[4] (POCSO Act)[5] addressed the issue of age of consent and various difficulties being faced by Judges of trial and appellate courts in examining cases of consensual sex among adolescents.
Since its enactment in 2012, the primary objective of the POCSO Act has been to safeguard minors from offences of sexual abuse and exploitation and provides for severe punishment for any person who is found guilty of committing sexual offences against children. The Act defines a child as any person below the age of 18 years. The consent of a “child” is immaterial and consensual sexual intercourse with or among adolescents is treated on a par with rape. However, in recent years, there have been calls for reconsideration of the age limit under the Act due to the increasing number of cases of sexual offences between the age group of 16-18. Many experts argue that the age limit of 18 years is too low, and that it fails to take into account the complexities of adolescent relationships. Mostly cases under the POCSO Act are of romantic relationships between an adult and an adolescent which given a colour of sexual offence to punish the boy by families of the girl. Enfold Proactive Health Trust, an NGO based in Bengaluru, conducted a study with UNICEF (United Nations International Children’s Emergency Fund) India and UNFPA[6] (United Nations Population Fund), analysing 1715 such “romantic cases” registered under the POCSO Act in Assam, Maharashtra, and West Bengal between the year 2016-2020. The study revealed that “romantic cases” accounted for 24.3 per cent of all POCSO cases between 2016 till 2020, and 80.2 per cent of these cases were filed by parents and relatives of the girl.
In numerous cases, a couple elopes fearing opposition from parents resulting in a situation where families file a case, for which the police book the boy for rape under the POCSO Act and abduction with the intent to marry under the Penal Code (IPC), 1860[7] or the Prohibition of Child Marriage Act, 2006[8]. The Karnataka High Court has directed the Law Commission of India to reconsider the age of consent under the POCSO Act. A Division Bench consisting of Suraj Govindaraj and G. Basavaraja, JJ. of the Karnataka High Court in a judgment passed on 5-11-2022 observed that there are several cases relating to minor girls above 16 years having fallen in love and eloped which results in having sexual intercourse with the boy and opined that the Law Commission of India should rethink on the age criteria, so as to take into consideration the ground realities.[9]
Such offences are slapped against teenagers, who fall victim to the application of the POCSO Act at a young age without understanding the severity of the enactment. It impacts the delivery justice system as these cases constitute a large burden on our courts and divert attention from investigation and prosecution of actual cases of child sexual abuse and exploitation.
CONCLUSION:
The period of consent and provision of anticipatory bail is an important part of the POCSO Act which needs careful thought and consideration. While the demonstration aims to provide strong protection for young people against sexual violations, it is important to strike some sort of balance between ensuring equity harm and protecting the liberties of the accused. Any proposed changes or amendments should be aimed at promoting youth government assistance and preventing situations such as sexual discrimination and double affairs.
[1] 22 March, 2022
[2] 2020 SCC OnLine SC 964
[3] 2022 SCC OnLine Del 3705
[4] Dishha Bagchi, “‘Prioritise Interest of Child Over So-Called Honour’ — CJI Takes Stock of POCSO, its Implementation”.
[5] Protection of Children from Sexual Offences Act, 2012
[6] “‘Romantic’ Cases under the POCSO Act: An Analysis of Judgments of Special Courts in Assam, Maharashtra & West Bengal”, Enfold Proactive Health Trust with support from UNICEF – India, June 2022.
[7] Penal Code, 1860
[8] Prohibition of Child Marriage Act, 2006
[9] “HC Says Law Commission Needs to Rethink Age Criteria for Consensual Sex”, The Hindu.
BY: Aastha Ganesh Tiwari