INTRODUCTION
India follows China in being the second most populated country in the world. It shelters around 444 million children between the age group of 0-18 years. It is a fact universally accepted that children are gullible which makes them increasingly vulnerable to being exploited or specifically speaking, sexually exploited. Constituting a sizeable proportion of India’s total population, children required a special law dealing with cases of sexual violence against them. This prompted the Parliament to enact the Protection of Children from Sexual Offences Act, 2012.
POCSO ACT: AN OVERVIEW
The POCSO Act was enacted “to protect children from offences of sexual assault, sexual harassment, and pornography and provide for the establishment of Special Courts for the trial of such offences and matters connected therewith or incidental thereto.” Consisting of nine chapters and forty-six sections, the Act is gender-neutral. The statute primarily defines multiple forms of sexual violence including , sexual assault, their aggravated forms, and sexual harassment, and also provides punishments for them. Using a child to expose him to pornography is also proscribed under the Act. The law lays down a detailed procedure for reporting any offence related thereto and for the care and protection of the child victim.
CONSENT: MEANING AND RECOGNITION UNDER INDIAN LAW
Consent is defined as, “Voluntary yielding the will to the proposition of another; acquiescence or compliance therewith ”. The law considers a child to be incapable of understanding the meaning and consequences of his/her actions and therefore, his consent is treated as invalid. Age of consent refers to the legal age at which a person becomes capable of consenting to perform any sexual act. It was raised by the POCSO Act from sixteen to eighteen years which was followed by a similar amendment in the rape law under Section 375 of the I.P.C., 1860. As per Section 2(d) of POCSO which defines a child as any person below the age of eighteen years. Therefore, any sexual activity between consenting individuals who are yet to attain the age of eighteen years is penalized.
MISUSE OF THE LAW
The object and purpose of the law are stated in explicit terms in the Act, per se. It is simply to protect children against acts of sexual abuse. However, it is more often than not used as a device to torment teens below the age of eighteen, who are involved in consensual sexual relationships. In most cases, the parents of the underage girl try to implicate the boy, who she was consensually involved with, under the Act. This emanates from the parent’s disapproval of their daughter making her own choices. The Enfold Proactive Health Trust conducted a study of the cases decided by courts in Assam, Maharashtra, and West Bengal and the report suggests that in 1,508 cases out of 1,715 cases, the victim revealed that the relationship between the accused and her was consensual. The data reveals that the enormity of cases filed under the Act are not conventional victim-perpetrator cases but involve two adolescents, sharing a romantic and consensual relationship.
THE IRONY: EXCEPTION TO RAPE AND POCSO ACT
It is a fact, worthy of our attention that Exception 2 to Section 375 brought sexual intercourse by a man with his wife, not below the age of fifteen years, outside the purview of rape. In other words, the law does not recognize marital rape. Although the exception was amended in 2017 with the effect of raising this age to eighteen to bring the law in conformity with the POCSO Act, it is still not satisfactory. The law does not criminalize intercourse by a man with his wife, even if there is a want of consent on her part. However, it does criminalize consensual sexual acts between adolescents. I humbly submit that the underage factor, in this case, is no defence.
AGE OF CONSENT: NEED FOR REVISION
In most jurisdictions, the age of consent is fixed at sixteen. This will include some states of the U.S., Europe, Japan, Canada, Australia, and more. Adolescence is a phase marked by changes ranging from physical to emotional to hormonal. It is a period of exploration, discovery, and attraction which results in teenagers engaging in romantic relationships. Given the fact that consent was present between the two adolescents, it is an injustice of a notable degree if sex stemming out of love between them is criminalized.
Furthermore, a large number of cases registered under POCSO involve consenting individuals between the age group of 16-18 years. Also, the report of Enfold Proactive Health Trust aforementioned suggests that the acquittal rate is 94.2%, which is too high. In hearing these cases, if the courts have made acquittal of the accused the norm, one cannot help but think that the age of consent should be brought down to sixteen to enable the courts to dedicate their precious time to deciding cases involving grave issues.
In Ravi @Virumandi v State and another, the Madras High Court while confirming the conviction of a man under POCSO, observed that it is eagerly waiting for the time when the legislature will bring down the age of consent from sixteen to eighteen years. The has also opined that the legislature should take notice of the concerns relating to the age of consent under the Protection of Children from Sexual Offences Act, 2012.
CONCLUSION
In the modern era, maturity comes early with information of every kind being just a search away. Just because an individual is below the age of eighteen years does not mean that he is incapable of deciding for himself/herself. This is reinforced by the fact that various countries have fixed the age of consent at sixteen. An amendment should be brought in the POCSO Act, 2012 that defines a child as a person below the age of sixteen years and it should be enforced with immediate effect. This will be in harmony with the ground reality and would save the courts loads of unnecessary burden.
Author(s) Name: Tanzeela Hassan
