The law protecting children from sexual offences in India is coming under increasing criticism from Constitutional courts for not differentiating between minors who have been abused and those who have entered into consensual relationships. A string of cases under the Protection of Children from Sexual Offenses (POCSO) Act, a crucial legislation aimed at protecting minors from sexual abuse, have been thrown out in recent years by High Courts for ensnaring adolescents involved in consensual romantic relationships. TNM looked at trials in a POCSO special court in Bengaluru and found surprisingly high rates of acquittal in cases involving teenagers.
We found that out of the 60 trials that ended from January to May, an astonishing 59 cases resulted in acquittals. Our focus was on 49 cases in which the accused males belonged to ages from 17 to 25. All cases were based on complaints registered by parents and relatives of adolescent girls after they eloped or their pregnancy was discovered.
A 17-year-old from Bengaluru was in a relationship with a 22-year-old man. Her family first filed a missing complaint in 2019 and after she was found, the complaint was converted into a kidnap and rape case. The girl maintained right from the beginning that she was in a consensual relationship with the man and he was eventually acquitted in May 2023. This is, however, not an isolated case.
Of the 49 acquittals, in 15 cases, adolescent girls admitted to being in a romantic relationship with the accused. In seven cases, the girls had told the court that they had (voluntarily) married the men.
One such case is of a 17-year-old girl from a Scheduled Caste community in Hoskote who had eloped with a 24-year-old Lingayat boy. Based on the girl’s parent’s statement, a case was registered under section 6 (aggravated penetrative sexual assault) of POCSO and various sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. During the cross-examination, the girl said that she was in a relationship with the boy and had eloped with him, and he was acquitted.
In eight cases, the girls turned hostile and refused to depose before the court. A lawyer pointed out that this in all probability was because they had been in consensual relationships.
A significant number of cases involved parents filing complaints of kidnap and rape against young men with whom their daughters had eloped. In all of these cases, the parents expressed opposition to the relationship.
In 10 such cases, the following pattern was observed: after the First Information Report (FIR) was filed describing the girl as a minor, the couple would usually be located in another part of the state by the police. The boy would be arrested and the girl would be sent to a children’s shelter. Cases were then filed under various sections of the Indian Penal Code (IPC) including inappropriate behavior (Section 354), abduction (Section 363), abduction of a woman for marriage (Section 366), sexual assault (Sections 376 and 377), and relevant sections of the POCSO Act.
In a 2018 case, a 17-year-old girl and a 21-year-old man had eloped. He was acquitted in May 2023 after the girl told the court that she had eloped to get married.
In these instances of acquittals, the Special Court was reluctant to convict the accused, saying that they wanted to avoid disrupting the couples’ marital lives.
Critics argue that the POCSO Act fails to account for the evolving sexuality and developing capacity of adolescents, lumping all individuals below 18 years together without considering their best interests. Instead of addressing child sexual abuse, the law is being wielded against adolescents, mainly to suppress the sexual expressions of adolescent girls and safeguard “family honour”.
Public prosecutors TNM spoke to said that most often the girls initially give statements due to parental pressure but turn hostile during the cross-examination.
A study of 231 POCSO cases in Mumbai and Delhi revealed that 83 cases were related to romantic relationships, and acquittals were commonly observed. The study by the HAQ Centre for Child Rights and FACSE-Mumbai highlighted the disconnect between the law and ground realities, with a significant number of acquittals observed in cases involving consensual relationships.
TNM had earlier reported on the impact of the POCSO Act on tribal communities in Kerala. We found that lack of awareness about the law, educational backwardness, and failure to sensitise the communities about the consequences of early marriage contribute to the problem.
The Madras High Court now plans to quash criminal cases against minor boys involved in consensual relationships with minor girls or elopements if it deems such cases are harmful to children and an abuse of the legal process. The court highlighted that numerous such cases were pending in Tamil Nadu and directed the Director General of Police to identify cases involving consensual relationships and create a separate list by August 11.
A study by Enfold Proactive Health Trust, undertaken with support from UNICEF and UNFPA, suggested that the age of consent for sexual activity be re-examined and comprehensive sexuality education be introduced in schools. They looked at 7064 cases registered under POCSO Act in Maharashtra, West Bengal, and Assam. The study revealed that 23.4% (1715) of them are romantic cases.
The 22nd Law Commission, which is looking into the issue of age of consent, had met with officials from the Women and Child Development Ministry to gather information and emphasised the need for further examination. The Commission will soon release a report on the minimum age of consent under the POCSO Act, which is currently set at 18 years.
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The age of consent has changed over time, influenced by shifts in societal understanding and driven by women’s and child rights movements. Initially, laws reflected a colonial and patriarchal view, treating girls/women as the property of their fathers or husbands. In India, the age of consent was linked to marriage age, but reformers pushed for higher consent ages.
In 1860, the age of consent was set at 10 years, but the death of Phulmoni Dossee, a 10-year-old girl in Calcutta, in 1889 after her much older husband tried to have sex with her served as a trigger to raise the age of consent for sexual intercourse to 12 years. Subsequent amendments increased it to 14 and then 16 years. In 2012, the POCSO Act set it at 18 years, introducing a gender-neutral consent age. Exceptions for consensual activity between 16 and 18 years were initially considered but later withdrawn.
The POCSO Act was further amended in 2019 to enhance the minimum punishment for penetrative sexual offences and introduce the death penalty for aggravated penetrative sexual assault.
Legal experts and activists argue that reducing the age of consent is not the only solution to addressing issues arising from the POCSO Act and insist on the importance of comprehensive sex education in schools and of open conversations about sexuality.
Any plan to introduce sex education in schools has been thwarted by politicians as well as Education Department officials as most consider any conversation about sex a taboo. Schools do not expose children to sex education or talk about taking precautions or exploring one’s sexuality and one’s body. This despite the fact that many teenagers are in romantic relationships and are sexually active. It then becomes important to teach them how to protect themselves and make them aware of laws like POCSO.
Most often these children who are arrested on grounds of POCSO have no idea that indulging in sexual acts with another minor is a crime.
Experts have also pointed out during this debate that if the age of consent is lowered to 16, it is necessary to make corresponding adjustments to other laws related to the age of consent. For example, the legal age of marriage is set to be raised to 21 through the enactment of the Prohibition of Child Marriage (Amendment) Bill, 2021. This proposal is inconsistent with Muslim personal law and the POCSO Act. It should be noted that Muslim personal laws allow marriage for girls at puberty, usually assumed to be around 15 years, creating a disparity with the POCSO law that also aims to prevent child marriage.
Swagata Raha, Director, Research, and Co-Director, Restorative Practices, at Enfold, said that to address the concerns surrounding consensual acts involving adolescents aged 16 and above, legal amendments to the POCSO Act and the IPC are necessary. Proposed amendments could include a specific provision acknowledging consent for individuals above 16 years old. However, acts committed without their consent, through coercion or by individuals in positions of authority, should remain criminal offences.
“Until these amendments are made, law enforcement agencies should exercise discretion within existing legal provisions to act in the best interest of children,” she added.
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