Why are consensual and non-exploitative sexual acts also coming under the radar of the POCSO Act and IPC?

Why are consensual and non-exploitative sexual acts also coming under the radar of the POCSO Act and IPC?

Subject: Polity

POCSO Act was enacted by the Parliament in 2012 to prevent children aged less than 18 from offences like sexual harassment, sexual assault, and child pornography. Its full form is the Protection of Children from Sexual Offences Act. The Act was passed in 2012 under the Ministry of Women and Child Development. To make the punishment for child abuse more stringent, the government notified the POCSO Act rules, 2020 which enabled the implementation of amendments to the Act.

Under the POCSO Act, 2012, and under several provisions of the IPC, whoever commits a penetrative sexual assault on a child — anyone below 18 years of age — can be “imprisoned for a term which is not less than seven years but which may extend to imprisonment for life, and shall also be liable to [a] fine.” Even if the girl is 16 years old, she is considered a “child” under the POCSO Act and hence her consent does not matter, and any sexual intercourse is treated as rape, thus opening it up to stringent punishment.

POCSO: a case study

In 2021, in the Vijaylakshmi vs State Rep case, the Madras High Court, while dismissing a POCSO case, said the definition of ‘child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. “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.” The court suggested that the age difference in consensual relationships should not be more than five years. This, it said, will ensure that a girl of an impressionable age is not taken advantage of by “a person who is much older.”

A parliamentary committee is looking into the Prohibition of Child Marriage (Amendment) Bill, 2021 which seeks to increase the minimum age of marriage for women to 21 years. Rights activists feel instead of helping the community, raising the age may force vulnerable women to remain under the yoke of family and social pressures.

Salient Features of POCSO Act 2012

The POCSO Act 2012 has some distinct features which make it important and relevant. They are discussed below:

• The act defines children as any individual aged below 18 years of age. The problem of gender exclusion in the previous acts was ignored here altogether as this act is gender-neutral in its stance.
• There are multiple forms and acts of sexual abuse defined under this act that is not just limited to pornography, harassment, or penetrative/non-penetrative offenses.
• These acts would be considered ‘aggravated’ if the child is mentally ill and/or the perpetrator comes from a position of authority and/or trust like a family member, doctor, teacher, etc.
• The prevention of ‘re-victimization’ of the child within the judicial system is of utmost importance as this act allows a policeman to act under the role of a child protector throughout the investigation.
• The process of investigation is to be made as child-friendly as possible, and justice to be served promptly within a year front the reporting of the incident.
• The setting up of ‘Special Courts’ has been done under this act which will exclusively deal with such offenses with the sensibility and sensitivity they need.
• The central government is given the authority to make rules under the 45th section of the act.
• The State Commissions for the Protection of Child Rights (SCPCRs) and the National Commission for the Protection of Child Rights (NCPCR) have been given the authority to monitor the implementation of the act’s provisions. Both of these authorities are statutory in nature.
• The POCSO Act will override instances of inconsistencies with other provisions according to section 42A.
• The act makes the reporting of a sexual offense mandatory. Misuse of these laws with the purpose of defamation of the person is punishable.

What are the Related Constitutional Provisions?

• The Constitution guarantees to every child the right to live with dignity (Article 21), the right to personal liberty (Article 21), the right to privacy (Article 21), the right to equality (Article 14) and/or the right against discrimination (Article 15), the right against exploitation (Article 23 & 24).
• Right to free and compulsory elementary education for all children in the 6–14-year age group (Article 21 A)
• The Directive Principles of State Policy, and in particular Article 39(f), cast an obligation on the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.