By defining a child as a person under the age of 18, POCSO has fixed 18 as the age of consent, i.e., the age at which the law considers a person to be legally capable of giving sexual consent.
The Protection of Children from Sexual Offenses Act (POCSO) was enacted by Parliament in 2012 as a special legislation providing stronger safeguards against the sexual abuse of children, over and above the provisions against sexual offences contained in the Indian Penal Code, 1860 (IPC).
Section 375 of the IPC considers any sexual act with a woman under the age of 18 years with or without her consent as de facto or statutory rape. However, while rape under the IPC is a gendered offence, the POCSO is a gender-neutral law for the protection of all children. Section 2(d) of the law defines a ‘child’ as any person below the age of 18 years. Chapter II of the Act contains stringent punishments for all sexual offences against children.
Interestingly, POCSO does not speak of ‘consent’ or the lack thereof in order to determine the culpability for any of its offences. This is because children lack the maturity and agency to understand the implications of consenting to sexual activity, and thus cannot give informed consent to sexual involvement. By defining a child as a person under the age of 18, POCSO has fixed 18 as the age of consent, i.e., the age at which the law considers a person to be legally capable of giving sexual consent.
Amali (name changed) has only been able to see Majid (name changed) through the tattered curtain on the opposite end of the courtroom for the last three months. Handcuffed, head hung, Majid looked cadaverous almost. Amali could barely hear the barrage of questions being flung to her but steadfastly held onto her painful chants, "Majid is innocent. We love each other. We'll marry right after my next birthday."
Amali's story isn't an isolated one. A 2016 series of studies found that on average, over 20 per cent of the child sexual abuse cases in the states of Assam, West Bengal, Andhra Pradesh, Maharashtra and Delhi, constituted a case of consensual sexual relationship between both parties. Yet the stringent diktats of the ‘Age of Consent’ under POCSO often result in wrongful incrimination of adolescents. JALDI, Vidhi's Initiative on judicial reforms released its ‘A Decade of POCSO’ report last December where it was highlighted that one in every three POCSO cases end in acquittal. If we juxtapose this with a similar 2022 study, we see that 93 per cent of the surveyed cases ended in acquittal with the girl admitting to being in a consensual, romantic relationship with the accused.
Speaking at Vidhi's report launch, Justice Indira Banerjee had recalled an instance where she had to exercise the Supreme Court's power to do complete justice in order to exonerate one such couple who eventually got married after turning 18. She emphasised that the “law needs to be amended…there should be an exception if the girl is over 16 years of age”. This was echoed by Chief Justice DY Chandrachud who emphasised the need for Parliament to re-examine the age of consent.
Although the age of consent corresponds with the age of majority (i.e. 18 years) in India, the law has always contained provisions that recognise the rights and obligations of minors. For example, a minor of the age of 16 or above may be tried as an adult in criminal law as per the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act). However, POCSO contains a ‘hard’ age of consent, whereby all sexual activities involving minors are against the law, without any exemptions.
One upshot of this strict 'age of consent' is the criminalisation of ‘consensual’ sexual activity even between adolescents. In other words, POCSO does not take into consideration adolescent sexuality. On the contrary, studies have shown that sexual exploration is a very natural part of adolescent development and that most girls and boys turn sexually active at the age of 15. However, sexual relationships among adolescent minors are punishable under POCSO. Both parties in such relationships are treated as both ‘offenders’ and ‘victims’. ‘Offenders’ are tried as minors by the Juvenile Justice Board (constituted under Section 10 of the JJ Act) for being in conflict with the law, whereas ‘victims’ are sent to the Child Welfare Committee (constituted under Section 27 of the JJ Act) for rehabilitation and restoration.
Section 19 of the Act makes it a legal obligation to mandatorily report incidents concerning sexual offences against children. This provision is often misused to target romantic relationships and harass adolescents in such relationships. Empirical studies have revealed that POCSO complaints involving two ‘consenting’ adolescent parties are often filed by parents of the girl, who disagree with their daughter’s choice of partner and use the law to end the relationship. This provision has also been deployed by vigilante groups who seek to morally police girls from their communities from forming relationships outside the boundaries of caste or religion.
Thus, the law as it currently stands denies adolescents their agency and bodily autonomy, by allowing third parties to interfere in their sexual-romantic relationships. What's worse is, fearing persecution, adolescents often resort to covert, subpar medical facilities in the event of pregnancies and abortion.
The failure of POCSO to address adolescent sexuality has been recognised as a legal grey area by the courts. In 2021, the Madras High Court, while hearing a POCSO case, observed that the involvement of a teenage girl with a person a little older could be a result of mutual, biological attraction, and ought not be construed as an unnatural relationship punishable by law. The Court advocated a ‘biosocial’ approach to the law, which would recognise the ‘science and psychology of adolescence and young adulthood’. This need for legislative reform has been reiterated by the subsequent judgements of at least 17 high courts including the Delhi High Court, Bombay High Court, Madhya Pradesh High Court, Karnataka High Court and Meghalaya High Court.
The crux of the problem is that there is a mismatch between the legal notion of the age of consent (which conceives only of the two categories of children and adults) and the biological reality of sexual exploration during adolescence (constituting a transitional category between childhood and adulthood).
The most common way in which legal systems have sought to resolve this inconsistency is by moving from ‘hard’ to ‘soft’ age of consent laws, whereby a single age of consent is replaced by different ages of consent for different age groups. Such provisions are known as ‘close-in-age’ exemptions to the age of consent law. In Canada, for example, while the general age of consent is 16 years, a 14-year-old may legally give consent to sexual activity with a person not more than five years older in age, i.e. a person of the age 14-19. In a 2019 case, the Madras High Court suggested a similar reform of the POCSO law, retaining the general age of consent of 18 years, but with an exemption for consensual sexual acts between persons of the age of 16 and partners within a five-year age gap (i.e.persons of the age group of 16-21).
A close-in-age exemption may be introduced through the insertion of such a provision in Chapter II of POCSO. This can potentially prevent the harassment of young couples, allow the process of teenage sexual exploration and reaffirm the bodily autonomy of adolescent minors.
(Yashaswini Basu is Nyaaya’s Outreach Lead, managing strategic partnerships and collaborative content. Raghunandan Sriram is a Research Fellow at Vidhi Centre For Legal Policy.)