Date: 06/09/2022

Relevance: GS-1: Salient features of Indian Society, Diversity of India, and Effects of globalization on Indian society.

Relevance: GS-2: Role of Judiciary with respect to various laws and mechanisms, Issues relating to development and management of Social Sector/Human Resources,

Key Phrases: Protection of Children from Sexual Offences (POCSO) Act, Age of consent, section 484 of CrPC, Misuse of POSCO Act

Context:

• Recently the Karnataka High Court quashed criminal proceedings of rape and kidnapping under the Indian Penal Code, and penetrative and aggravated penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012 of a girl’s partner, who was in a relationship with a girl.

Background:

• The Criminal proceedings under the relevant laws were initiated based on a complaint of a 17-year-old girl’s father against her 20-year-old partner.
• The girl stated in court that the acts were consensual and she had married the accused after she had turned 18; the marriage was registered and a child was born to the couple.
• The High Court observed that “if the court would shut its doors to the couple who are married and bringing up the child, the entire proceedings would result in miscarriage of justice.”

How has the POCSO fared?

• The enactment of POCSO has led to a system where many young couples in consensual and non-exploitative relationships have found themselves embroiled in the criminal justice system.
• Since consent of a “child” is immaterial under the POSCO provisions, consensual sexual intercourse with or among adolescents is treated on a par with rape.
• It creates two different streams of law enforcement
  • Usually boys/young men are charged with sexual offences
  • At the same time girls are treated as victims and institutionalized in children’s homes when they refuse to return to their parents or their parents refuse to accept them.
• Faced with criminal prosecution and incarceration, the only relief available to the couple is to urge the High Court to quash the case by using its inherent powers under Section 482 of the Criminal Procedure Code of the high courts.
  • Section 482 of IPC states “to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

How has the judiciary reacted?

• Many High Courts have recognized the normalcy of these relationships, the futility of prosecuting romantic cases, marriage between the parties, as well as the harmful impact of continued prosecution on both parties.
• The Madras High Court observed in Vijaylakshmi v. State Rep (2021) that, “punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act.”
• Similarly the Himachal Pradesh High Court allowed a petition filed by the minor girl’s father for quashing the trial against his son-in-law on similar grounds of suffering to both the parties.
• Meghalaya High Court also quashed a case in which a couple got entangled under the POCSO Act when the husband was major and wife a minor was pregnant on similar grounds of familial relationship.

POCSO Cases : data and statistics:

• An analysis by Enfold Proactive Health Trust in various states shows that of 1,715 “romantic” cases under the POCSO Act about 25% were decided by Special Courts.
• The parents and relatives of the girls constituted about 80 % of the total complainants who mainly resorted to complaints only after girls went against their will.
• The victim and the accused were married to each other in only 46.5% of the cases.
• About 85% girls declared their relationship to be consensual but only about 45% of such couples (victims and accused) were allowed to get married.
• The Special Courts acknowledged that about 60 % of the relationships were consensual.
• About 80% girls did not incriminate the accused and overall acquittals were recorded in about 94% of the cases.

The Law reforms are the way forward

• The high rate of acquittals shows that the law is not in sync with social realities of adolescent relationships.
• The High Courts have also acknowledged the disruptive impact of the criminal law in such cases.
• While the marriage between some cases have influenced several High Courts and resulted in the quashing of romantic cases under the POCSO Act
  • Sexual behavior is normative during adolescence, and not all relationships end in marriage.

Conclusion

• Blanket criminalization of consensual sexual acts involving older adolescents leads to
  • Erosion of their dignity, best interests, liberty, privacy, evolving autonomy, and development potential.
  • It also impacts the delivery of justice 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.
• There is thus a compelling need for law reform to revise the age of consent and prevent the criminalization of older adolescents engaging in factually consensual and non-exploitative acts.

Source: The Hindu

Mains Question:

Q. “Age of consent has been used to weaponized POCSO Act against adolescents which was primarily meant to protect them.” In light of the statement critically analyze aims and objectives of the Act and suggest measures to avoid misuse of the Act (250 words).