The advancement of women and children is largely weighed as a measure of progression, in the World. India, predicted to be a major growing economy has had still some daunting task left in terms of such progress. Amongst many knots, sexual crimes against a child was and is a major misery. Years back, focusing ghastly rise in sexual crimes against children in India, POCSO (Protection of Children from Sexual Offences Act) a gender-neutral legislation was enacted in year 2012 which is also a result of India’s obligation under the United Nations Convention on the Rights of the Child (UNCRC) to prevent ‘inducement or coercion of a child to engage in any unlawful sexual activity. This Law aims to stop the abuse of children at the tender age and promotes development in a healthy manner with freedom and dignity. It entails a rigorous punishment of 10 years to imprisonment for life against a culprit under the Act. Post its legislation, unarguably, the act has upraised the fight against such crimes even though if it has not absolutely addressed it.
Yet lately, worrying to note is the misuse of the act in consensual affairs between two adolescents. Several provisions of the Act despite being rigorous are not watertight. POCSO defines a child as someone who is less than 18 years of age and since the age of consent is 18, it makes any sexual activity between teen couples regardless of whether it is consensual, a criminal act. This part been found to be a legal grey area for the consent given by minor is not a valid consent under POCSO till 18 years. Resultantly, it has ended up becoming a retributive tool for dissenting parents on knowing their children’s relationships or against the young couple eloping. Many High Courts in our Country has been consistently raising an alarm on growing abuse of the act. Madras High Court in one of its noted judgment titled Sabari, has held that the punishing of an adolescent boy who enters into a relationship with a minor girl and treating him as an offender was not the objective of the Act. It has also recommended the legislature to revise the age of child from 18 to 16 years so that any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act. High Court has also meticulously considered the science and psychology of adolescence and young adulthood, based on study of some international journals which says, this is because social and biological phenomena are widely recognized as determinants of human development, health, and socio- economic attainments across the life course, but our understanding of the underlying pathways and processes remains limited. Therefore, a “biosocial approach” i.e. one that conceptualizes the biological and social as mutually constituting, and draws on models and methods from the biomedical and social/behavioral sciences, is required in such cases of nature. Such relationship would be the result of mutual innocence and biological attraction and cannot be construed as an unnatural one or alien to between relationship of opposite sexes. According to a study, the age of adolescence as can be seen evidently, is one associated with an amassing change in the neurological, cognitive and psychological systems of a person and one of the most important aspect is that the individual tries to establish their identity, develops emotional and biological needs during this period as a result of which the individual tends to look for new relationships, bonding and partnership.
However at present, we see many such cases are now being given criminal colour because of the limitation of the act. National Crime Records Bureau (NCRB) reports rise in such integer of consensual cases. Instance, where a boy aged around 19 years and a girl aged around 17 years in consensual relationship develops physical intimacy, the boy is haphazardly termed as an offender inviting a punishment of not less than 10 years in jail regardless of the fact that the girl was capable of giving consent. Besides, there are cases where even if a couple gets married post attaining majority, such marriage does not come to aid of the boy. Hence, with the single focus on the protection of child sexual abuse, it is palpable that act ignores other ground realities. We cannot be oblivious to the fact that in the present time of exposure, romantic relationship and physical intimacy has become universal phenomena, particularly during adolescence, which certainly doesn’t call for criminalisation by any aged society. Infact, the Committee on the Rights of the Child, a body that monitors the implementation of the UNCRC has also advised countries against criminalising consensual, non-exploitative sexual activity among adolescents. Possibly apprehending this scenario, the National Commission for Protection of Child Rights (NCPCR), a statutory body had recommended that the age of consent at 16 be retained before the much amendment to the Criminal Law Act, 2013, that raised it to 18. In another development, recently the Parliamentary Standing Committee on Home Affairs submitted a report in the parliament bringing the complexity of issue in hand and recommending to see, if the age of the child defined under the Act can be reduced to 16 years, which is yet to see the light of the day.
One thing is clear that we cannot live in the moment of more law, less justice. Effectively responding to the evolving society must be the spirit of any law. POCSO undeniably needs strengthening to protect child sexual abuse howbeit its abuse in consensual affairs must be prevented. It is not the first time that a legislation has been put to misuse and we have instances under Dowry Law or SC/ST Act where Supreme Court was called upon to intervene and provide defences. Perhaps, this issue alike requires immediate fixation by the Apex Court or wisdom of the legislature. Justice Krishna Iyer, of Supreme Court known as People’s Judge once said “Society is guilty if anyone suffers unjustly.’’ Thus, time has come to shed the grey areas of this Act which will help in clocking its significant designs for which it was originally legislated.