Protection against Misuse: On POCSO Act, Adolescent Sex

The Protection of Children from Sexual Offences (POCSO) Act, 2012, is primarily designed for the protection of children from sexual abuse. 

• However, noticing a trend that adolescents, above 15 years but under 18, in voluntary relationships and having consensual sex were often being persecuted, the courts sought a review.

Current Legal Position and its Implications

• Legal Age of Consent in India: Under existing Indian law, the age of consent for physical relations is strictly 18 years. 
• Invalidity of Consent Below 18 Years: This means that if an individual is below 18, any physical relation, even if based on their explicit consent, is not deemed valid consent in the eyes of the law. 
  • Such acts are considered abuse and attract strict punishment under several statutes. 
• Key Statutes Governing Protection of Minors: These include Section 6 of the POCSO Act, Section 9 of the Prohibition of Child Marriage Act, 2006, and provisions of the newly introduced Bharatiya Nyaya Sanhita (BNS). 
• Uniform Definition of a Child: The law unequivocally treats anyone under the age of 18 as a child, irrespective of their perceived maturity or expressed consent. 
  • For example, a 16-year-old is considered a “child” under Section 2(d) of the POCSO Act, rendering her consent immaterial.

Challenge: Adolescents and the Law

• In the current era of the internet and digitalisation, children are maturing faster and gaining significant exposure. 
• This leads to a growing number of cases where adolescents, particularly those aged 16 or 17, engage in consensual physical relationships. 
• Despite their mutual agreement, these cases fall under the purview of the POCSO Act due to the age threshold, leading to severe legal consequences for those involved. 
• Courts, in their judgments, have frequently observed this disconnect and have even commented on the necessity of lowering the age of consent to align with changing societal norms.

Calls for Re-evaluation and Diverse Perspectives

• Reducing the Age of Consent: A petition has been filed in the court advocating for the reduction of the age of consent from 18 to 16 years.
• Judicial Recommendation for Non-Punishable Offence: Indira Jaising, appointed as Amicus Curiae by the Supreme Court in a related case, has suggested that if consensual physical relations occur between individuals aged 16 and 18, it should not be treated as a punishable offence. 
  • She argues that such an exception would preserve the protective intent of the statute while preventing its misuse against adolescent relationships that are not exploitative.
• Law Commission’s Stance: In a 2023 report, the Law Commission had said that it was against changing the age of consent. It advised “guided judicial discretion” instead, while sentencing in cases that involve children between 16 and 18 years in a voluntary, consensual relationship.
  • Argument:  Consent given by individuals aged between 16 and 18 can often be manipulated, as many adolescents in this age group may not yet possess the full capacity to distinguish right from wrong. 
• Madras High Court’s Approach: The Madras High Court, in Vijayalakshmi vs. State Representative case, 2021 proposed that if a child is between 16 and 18 years old and engages in consensual sex, it should not be considered a punishable offence if the age difference with the other person is less than 5 years. 
  • However, if the age difference exceeds 5 years, it should be deemed a punishable offence, acknowledging the increased risk of manipulation in such scenarios.

Conclusion

Educating adolescents about the law on sexual offences and its consequences is a must. Criminalising normal adolescent behaviour is not the way to protect against non-consensual, exploitative sexual offences.