The POCSO Act 2012, came as a landmark for criminalizing and identifying abuses against children under the age of 18 years. It identified every person under the age of 18 years as children and introduced a comprehensive punishment mechanism based on the intensity of offences commenced. The 2019 amendment introduced more stringent punishment along with the introduction of the death penalty to deter the increasing number of offences against children. The subsequent introduction of the POCSO Rule, 2020 helped broaden the effective implementation of the law through various State/Gov/Non-gov agencies. Immediate relief to the victim was made the priority through immediate and effective implementation of the law. The law had an unprecedented impact in effectively minimizing the number of offences against children.
Though it effectively reduced the severity of crimes against children of age below 16 years the law is misused and misleading when it comes to recognizing the relationship of adolescents. Since the law criminalizes any sexual activity among persons below 18 years of age, it refuses to recognize any consensual relationship among them. Certainly, the ground reality is very much different from what the lawmakers have been interpreting since the introduction of the law. 22nd Law Commission put forward its recommendations to the GOI and seems to have expressed its concern against changing the age of consent from 18 to 16.
POCSO Act- Protection of Children from Sexual Offenses Act, introduced in 2012 to safeguard and protect children under the age of 18 against any kind of sexual abuse. Further reviewed and amended in 2019 to introduce more stringent punishment including the death penalty.
Children- The POCSO Act defines all persons below the age of 18 as children.
Age of Consent- The age of consent is defined as the age required for consensual sexual activity. The age of consent in India is 18 years of age.
Adolescent- For this study the age of adolescents is to be considered between 16 and 18 years of age.
Consensual sexual activity/ consensual romantic relationship- All sexual activity or romantic relationships with mutual consent.
Sexual abuse- Any sexual activity or intent to sexual activities without the consent or the knowledge of the victim with the intent of molesting and outraging the chastity and integrity of the victim.
Law Commission of India- An executive body under the Government of India. Its function is to research and advise the government on legal reform, and is composed of legal experts, and headed by a retired judge.
Since the introduction of the POCSO Act in 2012, it has proved to have effectively dealt with cases of child abuse throughout the country. With the introduction of stringent punishments based on the gravity of the crime and the death penalty, the law was made more effective in deterring such abuses against children. It does not even have a comprehensive mechanism to deal with the criminal behaviour of the offender and subsequent punishment that follows but it also makes sure that the victim gets every possible help during the course of trial so that the victim is not traumatized or re-victimized during the due process of law. The victim shall get immediate response from various agencies along with financial and psychological. But somehow the law contains some which are, at some point of time, contrasting to even the basic principles of the Indian Constitution.
The age of consent is 18 years of age accordingloopholes the law, so by the nature of law it criminalizes all sexual activities or even romantic relations below 18 years of age. There is an increasing number of consensual sexual activities and romantic, among adolescents i.e., from 16 to the 18 years of age. Since the law criminalizes every sexual expression below 18, it actually comes in contrast to the basic principle of freedom of expression. Since such kind of activities comes natural it actually proved to be a loophole. It becomes more intense when a girl under the age of 18 gets pregnant and cannot claim any medical aid or opt for safe abortion practices on her own. As a result, any sexual activity of adolescent is deemed to be rape or sexual assault it does not recognizes the concept of mutual consent among them by the nature of the law. The law has been misused and misapplied by families with a lack of distinction between consensual sex and rape. Or maybe it has something to do with their ability to gain control over the relations and sexuality of the adolescent, a way of exerting gender relations in the household. This has some severe impact on the sexual expression and psychological behavior of the adolescent. However, there is an increasing number of cases in recent years which actually recognizes the change in society and accepts the ground reality. Kerala High Court has recently expressed that such acts should not be penalized since they are natural. Penalizing such acts violates their right to sexual and decisional autonomy. The misuse of the law has most of its effect on young interfaith and inter-caste couples.
The law hits the consensual sexual acts between minors, its misuse and misapplication lead to the incarceration of boys, who, in most of the cases, were married to the victim. According to the retired Supreme Court Judge Justice Indira Banerjee, “The POCSO law at present does not address consensual relationship where the girl might just be under the age of 18 and the complainant is usually a family member of the girl who is opposed to the relationship between the boy and the girl”. adolescents was an increase number of cases under POCSO Act in recent years, where young couples were married and having sexual intercourse. This puts judges in a dilemma since by the nature of law they are bound to recognize these romantic relations as criminal acts. In recent years there has been an increase in demand to reduce the age of consent from 18 to 16 years of age from the academia as well as judiciary. However, all of the demands and rationale were thwarted when the 22nd Law Commission submitted its recommendations to the Government of India. In its report, it recommended that the age of consent should not be “tinkered” with. The rationale given by them was that it would lead “unintended consequences”, including direct and negative impact on the fight against child marriage and child trafficking which is acceptable to some extent because this failure should be attributed to passive response of the system and various agencies including the poor response of the police. Though it suggested introducing guided judicial discretion in the matter of sentencing in cases involving tacit approval between children in the 16-18 age bracket but that does not address most of the loopholes still explicit in the law in one form or other. Chief Justice of India DY Chandrachud brought attention to the excessive powers to the police in cases under the POCSO Act. This excessive power leads to the victimization of child victims. The law is still in contrast to the Muslim marriage law. The law is widely misused by conservative families in favor of family pride and there are still cases which go unrecorded when the offender is the family member of the victim. come and advising agencies are required to look for a more comprehensive and progress approach towards the implementation of the law. Families should be encouraged to report such crimes where the offender is the family member of the victim and they must not misuse the law to criminalize romantic relation among the young. Lawmakers and advising agencies are required to look for a more comprehensive and progressive approach towards the implementation of the law. Families should be encouraged to report such crimes where the offender is the family member of the victim and they must not misuse the law to criminalize romantic relations among the young. Lawmakers and advisory committees should also recognize the need of the hour and implementing agencies especially the police should be made more responsible and must be compelled to take fair actions during the course of trial.
Excessive powers on the one hand, in such sensitive cases, may prove to be a total failure of the spirit of the law and the basic principles of the Indian Constitution.
References:- POCSO Act 2012, amendment 2019, Rule Book 2020.