misuse of pocso act

Criminalising consensual relationships

adolescent population

India is home to the largest adolescent population in the world.

 The National Family Health Surveys indicate that a significant proportion of Indian teenagers are sexually active.

Misuse of POCSO

1 According to an analysis by Enfold Proactive Health Trust

 ‘romantic cases’ (where the relationship was consensual, according to the girls, their family members, or the court) constituted 24.3% of the total cases registered and disposed under the Protection of Children from Sexual Offences (POCSO) Act between 2016 and 2020 by special courts in Assam, Maharashtra and West Bengal. 

2 While POCSO’s objective is to protect children below 18 years from sexual abuse, 

its unintended  अनायास ही effect has been the criminal prosecution and the deprivation खत्म of liberty of young people in consensual relationships.

3  The law is also used by parents of adolescent girls to curtail sexual expression and “safeguard family honour”. 

4 बच्चे पर असर 

The ensuing criminal investigation and trial and the simultaneous समकालिक inquiry under the child protection system have an adverse impact on the adolescents’ development, education, employment, self-esteem, social reputation, and family life. 

5 For the adolescent boys, the long-term consequences of a conviction for statutory rape are incarceration जेल and inclusion in the sex offenders registry.

6 The law casts adolescent girls

as “victims”, thus rendering किसी सि्‍थति में डाल देना them voiceless. 

These girls are institutionalised in children’s homes when they refuse to return to their parents.

7  Adolescent boys are by default treated as children in conflict with the law and can even be tried as adults.

8 अधिकारों को छीना जा रहा है 

Such blanket criminalisation of consensual sexual acts among or with adolescents is in gross oversight ध्यान देने में भूल of their sexual development, bodily integrity and autonomy, and violates their right to life, privacy, and dignity. 

9 Rashtriya Kishor Swasthya Karyakram

The penal approach also impedes बाधा adolescents’ right to barrier-free access to sexual and reproductive health services and information recognised under the Rashtriya Kishor Swasthya Karyakram.

10 unsafe abortions

 The mandatory reporting obligation under the POCSO Act and the fear of the partner being reported to the police

 deters girls from availing themselves of medical services and inadvertently pushes them towards unsafe abortions.

11 समय की बरबादी

 The inclusion of consensual and non-exploitative acts involving adolescents 

detracts किसी की साख घटाना from the purpose of the POCSO Act

 and diverts time and resources from the investigation and trial of actual cases of sexual violence and exploitation. 

12 The median time between the lodging of the FIR and the disposal 

of such romantic cases was 1.4 years in Assam and 2.3 years each in Maharashtra and West Bengal.

According to Crime in India, 2021

 92.6% of cases under the POCSO Act were pending disposal.

 Consensual cases among these are overburdening the criminal justice system.

 The futility व्‍यर्थता of using the criminal law to regulate adolescent sexuality 

1 is also evinced दिखाई by the abnormally high acquittal विमुक्ति rates (93.8% in romantic cases) 

2 and the fact that the girl did not say anything incriminating against the accused in 81.5% of the cases.

3  Further, in 46.5% of the cases, the victims were married to the accused. 

4 The acquittal rate in these cases was 98.1% as many courts did not wish to disturb the marital life of the couple.

Many High Courts have recognised 

that adolescent relationships are normal and criminalisation of such acts affects both parties.

 In Vijayalakshmi v. State Rep. (2021), the Madras High Court cited evidence that “adolescent romance is an important developmental marker for adolescents’ self-identity, functioning and capacity for intimacy संबंधों की अति निकटता”.

The United Nations Committee on the Rights of the Child (CRC) in General Comment No. 20 

1 on the implementation of the rights of the child during adolescence urged states to balance protection of children from sexual exploitation and abuse with respect for their evolving autonomy

2  and recommended that “[s]tates should avoid criminalizing adolescents of similar ages for factually consensual and non-exploitative sexual activity.”

3  In 2019, it urged states to remove status offences, which criminalise adolescents who engage in consensual sexual acts with one another.

The way forward

1 Comprehensive sexuality education is needed 

to bridge knowledge gaps, build positive skills

 and attitudes so as to enable adolescents to make informed decisions and navigate through interpersonal relationships, while also realising the importance of their health and dignity. 

2 Equal efforts need to be directed towards imparting knowledge, skills and attitudes to vulnerable groups such as children with disabilities or those out of schools.

3 An amendment needs to be considered to the POCSO Act and the Indian Penal Code

 to decriminalise consensual acts involving adolescents above 16 years, while also ensuring that those above 16 years and below 18 years are protected against non-consensual acts. 

16 साल से ऊपर के किशोरों से जुड़े सहमति वाले कृत्यों को कम करने के लिए POCSO अधिनियम और भारतीय दंड संहिता में एक संशोधन पर विचार करने की आवश्यकता है, जबकि यह भी सुनिश्चित करना है कि 16 साल से ऊपर और 18 साल से कम उम्र के लोगों को गैर-सहमति वाले कृत्यों से बचाया जाए

A 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 a position of authority.

 Till such time as the law is amended, law enforcement agencies, child welfare committees and juvenile justice boards may consider exercising the discretion available to them under existing provisions in the best interest of children, so as to avoid/minimise the harm caused by arrest, apprehension, and institutionalisation of adolescents in consensual cases.

Source the hindu