The Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted with the primary objective of protecting children from sexual offences and establishing a child-friendly mechanism for trial of such offences.

However, it has resulted in criminalising sexual acts between adolescents that are consensual and non-exploitative.

Adolescents engaging in normative behaviour for their age are regularly getting mired in legal processes, battling charges of statutory rape. In this article, I argue that the law has a double standard when dealing with adolescents. In certain situations, the law contemplates that those between sixteen to eighteen years are competent to commit a crime and can be treated and tried as adults. However, when it comes to recognising their agency for sexual expression, the law continues to infantilise and criminalise them.

Weaponisation of POCSO against adolescents

One of the most significant changes brought by POCSO was the increase in the age of sexual consent from sixteen to eighteen years. This meant that adolescents who were in romantic and consensual non-exploitative sexual relationships suddenly became criminals in the eyes of the State, worthy of harsh punishments.

More than a decade of this law has seen several documented instances of a troubling pattern of juveniles getting entangled in criminal prosecutions for merely engaging in consensual, non-exploitative romantic relationships. Studies conducted in several states show that 20-25% of cases registered under POCSO involved a consensual romantic relationship. A majority of these cases were filed by families of the girl who disapproved of the relationship because of factors such as caste-class differences, the girl eloping, or becoming pregnant.

Experts have highlighted three main concerns resulting from a blanket criminalisation of adolescent sexuality. First, adolescents are denied the ability to consent at a stage where sexual curiosity and expression are a consequence of natural physical and psychological changes. It amounts to punishing what is natural. Second, by classifying all forms of sexual expression as child abuse, there is a wrongful categorisation in the minds of society which creates a stigma and robs adolescents of the ability to distinguish between what is consensual and forced, and severely hinders their developmental path. Third, blanket criminalization compounded with mandatory reporting obligations of any underage sexual activity under POCSO puts counselors, health care providers and educators at the risk of penal action for not reporting such incidents even against the wishes of the adolescent. This consequently takes away avenues for adolescents to seek help.

Child rights activists have raised alarm over this disturbing trend and called for lowering the age of sexual consent from eighteen to sixteen. Similar concerns have also been echoed by various High Courts across the country (See here, here & here). Even Chief Justice of India DY Chandrachud expressed the need to reconsider the age of consent under POCSO. Courts are regularly faced with petitions seeking quashing of proceedings and/or seeking bail in such cases (See here, here & here).

Competing concerns against reducing the age of sexual consent

Despite these concerns, the government recently clarified that it has no plans to lower the age of consent. Even the 283rd Law Commission Report concluded that it was not “advisable to tinker with the existing age of consent”.

Some of the primary reasons against any reduction in the age of consent are that, (a) it will exclude a significant number of children, especially girls above 16 years from protection of law; (b) it will increase instances of child marriage; (c) during the trial, the focus will shift towards the conduct of victims to establish consent, and lead to re-victimisation; (d) there will be increase in child trafficking through manufacturing consent by grooming children; (e) since consent is subjective; the discretion of police during investigation will lead to potential abuse even in genuine cases of rape.

However, despite noting these concerns, the Law Commission agreed in principle that consensual romantic relationships cannot be treated on the same footing as other sexual offences against children, such as exploitation and abuse. Thus, the Commission emphasized on the need to strike a delicate balance.

For cases involving adolescents between sixteen to eighteen years, the Law Commission has recommended a ‘guided judicial discretion’ in sentencing. Under this, a special judge will be empowered to determine if the victim and accused were in an intimate romantic relationship and have the discretion to impose less than the minimum sentence prescribed under POCSO in such cases. To determine whether a case involves a romantic relationship, a special judge is required to consider various factors such as the existence of any ‘tacit approval’ of child, though not consent, regarding intimacy; the age difference between the individuals not being more than three years; any indications of coercion, threat, exploitation or indication of vitiation of element of voluntary nature of the relationship; whether parties are married and have a child; whether accused is in a position of dominating or intimidating the child, and several others.

However, the Commission’s recommendations are not much of a departure from the status quo. The courts presently consider the above mentioned factors while dealing with grant of bail and/or  quashing of criminal proceedings. Therefore, these do not effectively redress the problems.

Double standards in treating adolescents: Need for de-criminalisation

There is a normative basis and rationale for treating adolescents differently from younger children. The National Policy for Children, 2013 states that “children are not a homogenous group and their different needs need different responses.” The Committee on the Rights of Child (CRC), the expert body tasked with implementation and interpretation of the Convention on the Rights of the Child has also recognized that “the rights of adolescents differ significantly from those adopted for younger children.”

Interestingly, in India, this distinction has also been statutorily recognized by the legislature in the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 15 read with Section 18(3) of the Act prescribes that an adolescent between the age of sixteen to eighteen years accused of committing a heinous offence may be treated and tried as an adult.

To determine whether or not to treat such a child as an adult, the Juvenile Justice Board (JJB) is empowered to conduct a preliminary assessment “with regard to his [juvenile's] mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence”. For the purpose of such assessment, the JJB is required to take assistance of experienced psychologists or psycho-social workers or other experts.

The exception carved out for adolescents in the JJ Act exposes the double standards within the criminal justice system. On the one hand, when it comes to prosecuting adolescents for heinous crimes, the State has carved out an exception to treat them as adults, while on the other hand, when it comes to recognizing their sexual agency, the State treats them as a homogenous class. This arbitrary classification sheds light on the paternalistic approach adopted by the State while dealing with consensual and non-exploitative sexual activities of adolescents of similar age. This approach is not consistent with the obligations under the Convention (in furtherance of which POSCO was enacted), which envisages striking a balance between the evolving capabilities of adolescents and levels of protections for them.

In view of the rampant abuse of POCSO by families of adolescents and the experience of the courts in dealing with romantic relationships, there is an urgent need to take remedial steps keeping in mind the best interests of the children. If a complete reduction of age of consent seems like a significant departure from the status quo in view of competing concerns, it is at the very least necessary to carve out an exception for adolescents between the age of sixteen to eighteen in romantic relationships. Such an exception can be further qualified by a close age-gap requirement, i.e. the difference in age between the parties being less than a prescribed number (24 or 36 months as appropriate). Similar clauses find applicability internationally in countries, including the United States, Canada and Australia etc. Further, to reduce subjectivity, the courts can take the assistance of trained psychologists and other experts in making an assessment of the adolescents to determine the nature of relationship, including capacity to consent, or existence of any factors such as child grooming, tutoring or existence of threat, fraud or coercion, that could vitiate consent in any manner.

POCSO was enacted with the intention of protecting the children. It cannot be allowed to become a weapon to regulate and control their sexuality. Several studies have documented the magnitude of the problem arising as a result of the existing law. The government’s hardline stance on the issue needs urgent reconsideration especially in light of the double standards in law highlighted here.

Vinayak Chawla is an advocate practicing before the Delhi High Court and district and trial courts in Delhi.