Chief Justice of India D.Y. Chandrachud on December 10, 2022 appealed to Parliament to have a relook at the issue of age of consent under the Protection of Children from Sexual Offences (POCSO) Act, 2012 as it posed difficulties for judges examining cases of consensual sex involving adolescents.
“In my time as a judge, I have observed that this category of case poses difficult questions for judges across the spectrum. There is a growing concern surrounding this issue which must be considered by the Legislature,” the CJI said while addressing a national stakeholders’ consultation on the POCSO Act, which completes 10 years. In 2012, the POCSO Act raised the age of consent to 18 years, which had been at 16 years since 1940.
The two-day consultation, which started on Saturday, is being conducted by the Supreme Court’s Committee on Juvenile Justice and is part of its annual stakeholders’ meet.
Explaining the peculiar challenge posed by the POCSO Act, the CJI said that the law criminalises all sexual activities for those under the age of 18 years, even if consent was factually present between two minors.
He shared the dais with Women and Child Development Minister Smriti Irani; Chairperson of the Supreme Court’s Juvenile Justice Committee Ravinder Bhat; Justice B.V. Nagarathna; and UNICEF’s country representative Cynthia McCaffrey. Among the audience were other Supreme Court judges as well as High Court and POCSO court judges, among others.
The CJI’s comments come at a time when several High Courts have called for an urgent need for legal reform to deal with “romantic cases” involving adolescents.
The Madras High Court recently said that it was “eagerly” waiting for the legislature to reduce the age of consent under the POCSO Act from the current 18 years, as it upheld the conviction of a man sentenced to seven years imprisonment for having kidnapped and repeatedly raped a 17-year-old girl. In Vijayalakshmi Vs. State Rep. the Inspector of Police, the Madras High Court questioned the wisdom of criminalising such acts. In Sabari Vs. Inspector of Police, too, the Madras High Court recommended that the age of consent be revised to 16 years.
The evidence presented before the stakeholders included a study carried out by Enfold Proactive Health Trust, Bengaluru, which found that 93.8% of “romantic cases” tried under POCSO ended in acquittal after consuming a median time of 1.4 to 2.3 years from the filing of a First Information Report (FIR) to disposal by courts.
These findings were based on an analyses of 1,715 romantic cases under the POCSO Act, registered and decided by special courts in Assam, Maharashtra and West Bengal between 2016-2020.
One in every four cases registered and disposed under POCSO was a “romantic case”, that is, where either the “victim” or her family or the special court said that there was a romantic relationship between the victim and the accused.
In more evidence of how the law is misused to punish adolescents involved in consensual sex, the study found that 80.2% of such cases were filed by parents or relatives of the girl involved in a consensual sexual relationship. Girls in such cases, however, do not support the prosecution, and in 87.9% of cases they expressly admitted to having a romantic or consensual relationship with the accused.
A similar study in 2018 by the Centre for the Child and the Law at National Law School of India University (CCL-NLSIU) revealed that romantic cases constituted 21.2% of cases in Andhra Pradesh, 15.6% in Assam, 21.5% in Delhi, 21.8% in three districts of Karnataka, and 20.5% in Maharashtra.
The report released by Enfold Proactive Health Trust recommends legal reforms to the POCSO Act and the Indian Penal Code (IPC) to decriminalise consensual sexual acts involving adolescents above 16 years, while ensuring that those above 16 years and below 18 years continue to be protected against non-consensual acts under the POCSO Act. It also proposes introduction of comprehensive sexuality education to help adolescents make informed decisions, as well as reforms to ensure access to sexual and reproductive health services.