Date: 14/12/2022

Relevance: GS-2: Government Policies and Interventions for Development in various sectors and issues arising out of their Design and Implementation.

Key Phrases: Child Sexual Abuse, J S Verma Committee, Sex Education, Protection Of Children From Sexual Offences Act, 2012, 2006, Protection Of Children From Sexual Offences (POCSO) Act, Age Of Consent, Section 484 Of Crpc, Misuse Of POCSO Act.

Why in News?

• The Chief Justice of India has made an urgent call for legislative reform to address the gap in the POCSO Act that often leads to the criminalisation of adolescent relationships as it posed challenges for judges examining cases of consensual sex involving adolescents.
• The concern referred to by the CJI emanates from the POCSO Act, which criminalises all sexual activity for those under the age of 18 regardless of whether consent is factually present between the two minors in a particular case.

Key Highlights:

• India is home to the largest adolescent population in the world, and public health surveys indicate that a significant proportion of Indian teenagers are sexually active.
• The study by UNICEF revealed that “romantic cases” accounted for 24.3 percent of all POCSO cases between 2016 and 2020, and that 80.2 percent of these cases were filed by parents and relatives of the girls. In over 87.9 percent of these cases, the girls admitted to having a romantic or consensual relationship with the accused.
• The study further revealed that the act was clamping down on tribal communities where marrying below the age of 18 is not taboo.

What is the Protection of Children from Sexual Offences (POCSO) Act, 2012:

• It is a gender-neutral legislation introduced in 2012 and was a watershed moment in the history of child rights in India because it finally provided a specialized mechanism for the adjudication of sexual crimes concerning children while prioritizing the best interests of the child.
• It is a Comprehensive law for the protection of all children (aged below 18 years) from offences of sexual harassment, sexual assault and pornography.

Features and Mandates:

• It provides speedy trial through special courts and child-friendly mechanisms at all stages of the judicial process.
• Completion of Investigation in 2 months and trial within 6 months.
• Provision of Fast Track Special Courts (FTSCs) to dispense quick justice.
• Covers criminals who are in positions of trust and authority such as police, public servants, etc.

What are the terms of the POCSO 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 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 (Amendment) Act, 2019:

• The act was made stricter through the following amendments
  • Defining Child Pornography.
  • Expanding scope of aggravated penetrative sexual assault.
  • Enhanced provision of minimum punishment e.g. 20 years to life imprisonment.
  • Provision of the death penalty in some cases of aggravated penetrative sexual assault.

Need for reformation of the law?

• The POCSO Act criminalises all sexual acts among those under 18 regardless of whether consent is present factually among minors because the presumption of the law is that there is no consent among those below 18.
• When adolescents engage in sexual activity with consent, such consent is not considered valid under POCSO, and legal actions are taken in such cases.
• The National Family Health Survey-5, 2019-21 (NFHS-5) states that 10% of women in the age group of 25-49 had their first sexual intercourse before the age of 15, and 39% had their first sexual intercourse before 18 years but the POCSO Act does not recognize the possibility of consensual sexual activity among or with older adolescents above 16 years.
• When such cases reach courts, they pose difficulties for the judges, and therefore the CJI has suggested that the minimum age of consent should be revisited by the parliament.

Recommendations of Justice Verma Committee:

• The age of consent under the POCSO Act be lowered to 16, and it should be distinguished from the age of marriage, as the latter entails responsibilities, expectations, implications, and legal liabilities, and sexual acts do not occur only within the confines of marriage.

Way Forward:

• A report by the UNICEF based on the findings of the implication of the POCSO Act in India on adolescent sexuality has recommended an amendment to the POCSO Act, 2012 and the IPC to decriminalise consensual acts involving adolescents above 16 years, while also ensuring that those above 16 years and below 18 years are protected against non-consensual acts under the POCSO Act.
• The report also suggested legal and policy reforms to ensure confidential and barrier-free access of adolescents to sexual and reproductive health services, and comprehensive sexuality and life skills education be integrated into the school curriculum.

Conclusion:

• The issue thus must be considered by the legislature in light of reliable research by experts in adolescent healthcare.
• With 253 million adolescents in the country and a social culture that stigmatises independent decisions when it comes to choosing a partner, the CJI’s call for reform is significant and welcome.

Source: Indian Express

Mains Question:

Q. There is an urgent need for legislative reform to address the gap in the POCSO Act that often leads to the criminalisation of adolescent relationships. Justify the statement.(150 words).