The question of consensual sex under the POCSO (Prevention of Children from Sexual Offences) Act, 2012 has been in debate for a long time.
While speaking to Swagata Raha, legal researcher with Centre for Child and the Law, NLSIU, Bangalore, on the sexual rights of adolescents, said that she saw this as a problem in the POCSO Act. She said, “Feelings of sexuality is natural. It is a part of growing up, irrespective of the socio-economic background that you are in. Keeping 18 years as the age to consensual sex ends up glossing on adolescent expression of sexuality as nominative. The failure to recognise that not all sexual act is exploitation ends up criminalising adolescence who are exploring and are in relationship with each other.”
Recently, Bombay High Court’s Justice S K Shinde took cognisance that there is a grey area under the POCSO Act about consensual sex among minors. He stated that the Act intended to protect the minor victims from sexual abuse. However, in the case of Arhant Janardan Sunatkari v The State of Maharashtra, the minors knew each other and had consensual sex. Therefore, Justice Shinde had granted bail to the 19-year-old boy.
Replying to the need of having an age of consent, Swagata Raha said, “There has to be an age of consent. Other countries have it, even we have it for years as children below a particular age completely lack maturity and are vulnerable to exploitation. There needs to be an age of consent which should be calibrated based on several factors.”
Further, clarifying on the debate whether adolescents are matured enough to take decisions or not, she said, “It is a nominal part. Some would even say that this is an age of marriage or to raise a child. If we were to assume that they lack maturity, should we punish them because they lack the maturity? Does the answer lie in criminalizing them because they lack the maturity? One would say if they lack maturity, they would need greater protection which will be by offering them safety, information, guidance and by offering counselling, instead of throwing them in a confined space.”
While we check the cases of consensual sex with minors, there have been cases where the higher courts have judiciously granted bail to the accused. There are instances where cases are usually filed by the family of the victim or the victim is coerced to file a rape case. As per the stringent provisions of the aforementioned Act, the statements and charges made by the victim are assumed to be true, until it is otherwise proved.
As per the National Crime Record Bureau (NCRB) 2015, 4114 cases registered were of adolescents aged 16-18 years out of 8833 cases mentioned under sections 4 and 6 of the POCSO Act. This also puts immense pressure on the special courts which otherwise might hear cases that need special attention. “The time of the courts get consumed. Also, there is a lot of cost involved – the police and prosecutors and the allied system responding to cases of consensual sex,” said Swagata. Also, considering the time taken by the courts to determine a matter, such false filing of cases can amount to a grievous loss of time and opportunity to the accused.
‘ROMANTIC CASES’ WHERE COURTS GRANTED BAIL
In Sunil Mahadev Patil vs the State of Maharashtra, the prosecutrix, a 15-year-old, went missing from her house and her father had filed a complaint against the appellant under 363 and 366A of the IPC. When the couple was found and the father of the prosecutrix got to know about their marriage and intercourse, charges of sections 3,4,5, and 6 of the POCSO Act were added against the appellant. The Bombay High Court had granted bail stating that the couple was in love and had sexual intercourse with consent.
While doing so, the High Court also averred to the judgement of the Supreme Court in S. Varadarajan vs State of Madras which mentioned that if the girl understands the man-woman relationship and marriage and takes the initiative, then the rigour of the offence is reduced. The High Court was also of the opinion that if a girl is a minor between the age group of 15 to 18 years and if it can be inferred that her consent was obvious, then it is a mitigating circumstance.
The Himachal Pradesh High Court’s bench of Justice Anoop Chitkara granted bail to the 20-year-old boy in the case of Rohit Sharma v State of Himachal Pradesh on the fact that the prosecutrix knew the accused before. The judgement said that the conduct of the prosecutrix was enough to grant bail to the petitioner.
Citing the case of Kalyan Chandra Sarkar v Rajesh Ranjan @Pappu Yadav, the High Court stated that the Supreme Court held that “the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situation.”
In Virender Singh v/s State of Himachal Pradesh, the bench of Justice Anoop Chitkara of the High Court had granted bail to the boy even though the age gap between the couple was comparatively big, as the boy aged 24 years and the girl 16 years. Justice Chitkara also stated that a girl falling in love with a more senior boy or vice-versa was not unusual in our society.
The High Court, in Diwakar Yadav v State of Chhattisgarh, granted bail to the applicant on the pretext that the prosecutrix, a 16-year-old, was in love with the applicant and had sexual intercourse while in the relationship.
The order stated: “Albeit the prosecutrix is less than 16 years of age, however, considering the affair and no objection of herself and her father during hearing of the bail application, I am of the opinion that present is a fit case to release the applicant on regular bail.”
The Delhi High Court had upheld the decision of the district court in the State v Suman Dass case that granted bail to the 22-year-old boy who indulged in consensual sex with a minor aged approximately 16 years.
The original order stated that “there is nothing to indicate that she was enticed or taken away by the accused since the girl child knew what she was doing and got married voluntarily and physical relation with the child was not in the nature of assault or consequent to use of any criminal force upon the girl child.”
THE ORDER ALSO STATED
“It is said that “Love is blind” and in such blindness they are not able to realize the kind of responsibilities that would fall ultimately on their shoulders after this marriage so early in their life. Law can not and should not prohibit teens from experimentation of such nature.”
It further stated, “It has been urged by Ms. Kalpana, Ld. Counsel from Delhi Commission for Women that the present enactment FIR No. 63/13 State v. Suman Dass Page no. 11 of 13 mandates that there must be total prohibition upon teenagers or adolescents from having any kind of sexual relationship. I am afraid, if that interpretation is allowed, it would mean that the human body of every individual under 18 years of age is the property of State and no individual below 18 years of age can be allowed to have the pleasures associated with once body.”
The Allahabad High Court, in Alok Bajpai v State of Uttar Pradesh, recently, granted bail to a 22-year-old boy, while considering that the prosecutrix, a 17-year-old, had consensual sex with the boy.
THE HIGH COURT STATED
“The age of the prosecutrix is about 17 years and having regard to the fact that she was studying in D.N.M. Institute of Engineering, it could not be ruled out that she was possessing sufficient knowledge and was in a position to fully understand the nature and consequences of sexual activity.”
Discussing the socio-legal approach on the duty to report as per Section 21 of the Act, Raha added, “What we are also hearing from doctors is when they inform young people about their duty to report, then many a times they don’t come back to the hospital, because they don’t want to say against their boyfriend/husband. They don’t want that legal hassle. The focus should be that adolescents have barrier-free access to sexual and reproductive services as well as information.”
She said that if the girl is found pregnant in such cases, then medical care should be the top-most priority. “The law should focus on immediate medical needs and the legalities can wait.”
Further, she said, “The law can be friendly by avoiding absolutes – creating the tight categories saying 18 above and below, without realizing that these relationships exist. The law must recognize that this is natural and nothing exploitative inherently. Along with this, the law has to also give priority to health-oriented services – how to ensure that the adolescent receives the services without having to fear that the law is going to get triggered.”
Raha suggested to look into the social aspects of the law as well. She said, “It is not about non-implementation, the law is being implemented, but the adolescents are being targeted. Therefore, impact analysis of the law landing on adolescents should be done. More evidence-based studies and analysis of models of other countries would help in coming up with a solution. The law can also consider taking a more educational and health approach as opposed to a punitive one. Work needs to be done in the community and with parents as they are also one of the stakeholders in this conversation and we need to see as to how can we reach to them to create sensitivity and understanding about the same.”
When asked about the appropriate age for consent, she said, “When we look at the prime data, we see significant proportion of cases of adolescents between 16-18 years where they have gotten married or eloped their homes to be with their partners. So, there are no definite answers at this stage, pros and cons need to be looked into.”
With the changing social dynamics of Indian society, as several experts have pointed out, it is, therefore, necessary to reconsider the age to consent for sexual intercourse.