This comes after Chief Justice of India DY Chandrachud asked lawmakers on Saturday to address the “growing concern” on the criminalisation of adolescents, who engage in consensual sexual activity, under the Act that fixes the minimum age of consent at 18. He had said that the POCSO Act criminalises all sexual activity for those under 18 years, regardless of whether there was consent between the two minors in a particular case.
“In my time as judge, I have observed that this category of cases poses difficult questions for judges across the spectrum,” he said, during a keynote address at the National Annual Stakeholders Consultation on Child Protection. In recent cases, some high courts too have questioned whether the POCSO Act was enacted with the intention of regulating adolescent sexuality, and have recommended legal reform.
The report by UNFPA, UNICEF and Bengaluru-based NGO Enfold that been working with child survivors of sexual abuse pointed out that in 2013, despite the recommendations by the Justice Verma Committee that the age of consent be reduced to 16 years, Section 375, IPC was amended and the age of consent was increased to 18 years. In cases where two underage minors are involved in a sexual relationship, the Juvenile Justice (Care and Protection of Children) Act, 2015, is applicable with the possibility of a child above 16 years being tried as an adult for heinous offences.
The report stated that India is home to the largest adolescent population in the world, and public health surveys indicate that a significant proportion of Indian teenagers are sexually active. The National Family Health Survey-5, 2019-21 (NFHS-5) states that 10% of women in the age group of 25-49 had their first sexual intercourse before the age of 15, and 39% had their first sexual intercourse before 18 years. But the POCSO Act does not recognise the possibility of consensual sexual activity among or with older adolescents above 16 years.
The researchers Swagata Raha, Director-Research, and Shruthi Ramakrishnan and others pointed out that while the age of consent varies across jurisdictions, 16 years appears to be the common age of consent across different countries, including South Asian countries like Sri Lanka, Bangladesh and Bhutan.
“It must be considered that the age of consent was 16 from 1940 to November 2012, till the POCSO Act came into force. The Justice Verma Committee and the Madras High Court have also recommended that the age of consent under the POCSO Act be lowered to 16. The age of consent should be distinguished from the age of marriage, as the latter entails responsibilities, expectations, implications and legal liabilities, and sexual acts do not occur only within the confines of marriage,” the research suggested.
The report suggested a distinct provision recognising consent by those above 16 years may be considered, while criminalising acts against them if it is against their will, without their consent, or where their consent has been obtained through fear of death or hurt, intoxication, or if the accused is in position of authority such as being a public servant, staff of a Child Care Institution or educational institution in which the adolescent is placed or is accessing education.
“Till such time as the law is amended, law enforcement agencies, Child Welfare Committees and Juvenile Justice Boards may consider exercising the discretion available under existing legal provisions, in the best interest of children, to avoid or minimise the harm caused by arrest, apprehension, and institutionalisation of adolescents and young persons in consensual cases,” it said.
Apart from a legal amendment to decriminalise consensual sexual acts involving adolescents above 16 years, while also ensuring that all children below 18 years are protected from sexual offences under the POCSO Act, the report also suggested legal and policy reforms to ensure confidential and barrier-free access of adolescents to sexual and reproductive health services, and comprehensive sexuality and life skills education be integrated into the school curriculum.
The report looked at a three-state study of “romantic cases” decided by Special Courts in Assam, Maharashtra and West Bengal that indicated that “romantic” cases constituted 24.3% of the total cases disposed of during 2016-20. Acquittals were the norm and were recorded in 93.8% of such cases, and in 87.9% of the 1,715 romantic cases, the victim herself admitted to a romantic relationship with the accused and in 81.5% cases she did not say anything incriminating against the accused, the report pointed out.