CommentaryThe Kerala High Court, while issuing an order in Anoop v. State of Kerela, recognized the fallacy of the Protection of Children from Sexual Offences Act (POCSO), 2012, and Indian Penal Code (IPC), 1856, in not distinguishing between consensual sexual activity and rape. The single judge bench remarked that these actions arise out of pure adolescent (“adolescent,” for the purpose of this article, refers to children between the age of 16 and 18 years) curiosity and lead to harsh consequences for the individuals due to the stance of the conservative law. While the court showcased progressiveness in its observing and acknowledging the conundrum, its misplacement of responsibility is heavily misguided. Instead of calling for reforms in the laws, it placed the burden on the education system, thereby upon the adolescent community to engage and educate themselves about these regressive laws. This is not an isolated incident; previously, other High Courts have also called for similar action. Not only does this undermine the bodily and sexual autonomy of adolescents, but it also fails to realize the fallacies of a legal system that lacks socio-legal dynamism.
The need here is not to educate but to amend the laws that penalize consensual sexual activity among adolescents arising out of genuine desire and curiosity. The law takes a paternalistic approach, utilizing a regressive method to curb the natural tendencies of adolescents.
The Legal Provisions
Section 2(1) (d) of the POCSO Act defines a “child” as being under 18 years of age for the purposes of offences defined under Sections 3 (penetrative sexual assault), 7 (sexual assault) and 11 (sexual harassment). Thereby, the act exhaustively criminalizes any and all sexual activity in which a child is involved, including adolescents, irrespective of whether they consented to it. Section 19 provides for mandatory reporting to the police of such sexual activities by any person who has knowledge. This mandatory reporting clause acts as a hindrance for adolescent pregnant girls and couples to access safe abortions due to the dire consequences for the male involved. Further, they are unable to access basic reproductive health facilities due to the fear of being prosecuted. This provision has time and again been exploited by parents against their children who act against their will and indulge in premarital sexual activity. Young inter-caste and interfaith couples are often targeted by conservative families using the provisions as a tool of their disapproval whenever the girl is younger than 18. Recently, a Bombay High Court bench quashed a First Information Report (FIR) and case under Section 4 of POCSO Act, contesting the couple had been in love and were now married since the girl had attained the age of majority. The male counterparts in these romantic relationships often become the target. Furthermore, if prosecuted, the presumption of guilt under Section 29 of the act lies against the accused. Although the law is gender neutral for the victims, in terms of the accused, it is only the men who face prosecution.
The Intent of the Law
The categorization of all sexual activity as rape not only undermines sexual and bodily autonomy but also projects state control over legitimization of sexual activity. Agency of an individual becomes immaterial and the state succeeds in penalizing and stigmatizing any behavior that deviates from societal norms of legitimate sexual activity. The Supreme Court has recognised right to privacy (Justice K.S. Puttaswamy v. Union of India) and the right to sexual autonomy of individuals (Navtej Singh Johar & Ors. v. Union of India) as being part of the fundamental right to life under Article 21 of the Constitution. When read conjunctively, the judgements allot individuals the autonomy to indulge in activities in their private sphere without any interference from the government or others. Consequently, the law at hand stands in contravention of Article 21 of the Constitution of India. However, this makes one question whether such protection is afforded to only those activities that are legitimately pursued shaped by the societal moral compass.
Undeniably, there exists a relation to morality with allocating such a limit for adolescents. The concept of purity is often attributed to girls, who are expected to remain innocent before marriage. There might be an underlying misconception of conflating marriage with sexual autonomy and expression of girls. Moreover, in a system where in a marriage the consent of a woman becomes wholly immaterial for sexual intercourse, it is not surprising that the law does not deem adolescent girls fit enough to consent. Where adolescent girls are presumed to be powerless and victimized, their male partners are labelled as criminals without any aid for redress. The girls are also forced to face and deal with the criminal justice system that more often than not has been hostile toward non-ideal victims. It also obstructs their engagement with sex education and reproductive healthcare due to the fear of being reported as mandated under Section 19 of the act.
Tackling the Problem
In 2019, in the Madras High Court judgement of Sabari @ Sabarinathan v. The Inspector of Police, Belukurichi Police Station & Ors., Justice V. Parthiban, in identifying and addressing this issue, also gave certain recommendations to tackle it. It was suggested that, first, the age of consent under the POCSO Act should be lowered to 16 years and, second, a proximity clause should be introduced. A proximity clause requires that there should not be much difference between the age of the offender and the survivor—for example, five years. It is a prominent part of age of consent laws in many jurisdictions. This would act as a mechanism for safeguarding the adolescent couple from being brought under the ambit of the act.
In a subsequent case in 2021, the Madras High Court, while relying on the Sabari judgement, remarked how POCSO had been used as a tool, to abuse the process of law. While not refuting the existence of genuine cases, the court said that there is an urgent need to not prosecute adolescent romantic relationships considering the severe punishments enshrined under the act. The court also emphasised the need for legislative action to address the legal loophole.
Conclusion
Internationally, the Convention on the Rights of the Child prioritizes the “evolving capacities of the child” (Article 5). Its commentaries have emphasized providing adolescents with decisional autonomy and opportunities to explore their sexuality. A commentary while discussing the age of consent condemns criminalization of “consensual and non-exploitative sexual activity” between adolescents of similar ages. This also encourages the incorporation of the proximity clause in laws pertaining to age of consent.
The Justice Verma Committee Report and the 205th Law Commission Report have also called for reconsidering the age of consent. In this context it is important for an independent holistic development of the adolescent community in India that such reforms are made so that adolescents can exercise their sexual autonomy and expression without a fear of prosecution. Justice V. Parthiban’s suggestions might be useful in tackling the issue since they align with international best practices. Judicial activism has shouldered the responsibility of ensuring injustice is not carried out toward adolescents in the name of regressive, out-of-date laws, but for how long? It is high time affirmative legislative action should follow. Neither can the responsibility be laid upon young minds to succumb to a legal system that rejects and penalizes their natural tendencies.
Rishav Devrani is a recent law graduate from the Rajiv Gandhi National University of Law, Punjab. His area of interest lies in the field of human rights, gender laws and public policy.
Suggested citation: Rishav Devrani, Relinquishing Adolescent Sexuality in India: Rape and Consensual Sex Under the POCSO Act, JURIST – Student Commentary, June 21, 2022, https://www.jurist.org/commentary/2020/06/rishav-devrani-adolescent-consent-india/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org
