In August, a three-judge Supreme Court bench, led by Chief Justice DY Chandrachud, took up a public interest litigation challenging the criminalisation of consensual sex among 16-18-year-olds. The Court has sought the Centre’s response and issued notices to government ministries and the National Commission for Women.

The Law Commission, however, in its report made public on September 29, opposed such a move warning that it could instead negatively affect child marriage and trafficking. It has, instead, suggested “guided judicial discretion” while dealing with cases involving adolescents aged between 16 to 18 years of age.

Currently, cases of consensual sexual relations between teenagers aged 16 to 18 years of age are dealt with under the Protection of Children from Sexual Offences Act, which defines a child as any person below the age of 18 years.

Enacted in 2012, the legislation was praised for its innovative approach that placed the burden of proof on the accused, its commitment to gender neutrality, the commendable efforts to shield child witnesses and its dedication to ensuring a swift judicial process.

Yet, the mandatory reporting requirements of the law remain a contentious issue. Reporting consensual sexual relations among teenagers between 16 to 18 years of age can have unintended consequences to the detriment of the adolescents involved.

A more instructive approach calls for navigating the delicate balance between safeguarding minors and respecting their evolving autonomy in sexual matters. Revisiting and updating some of the stringent provisions of the act, as well as their interpretation by the judiciary, will help the law keep pace with transforming societal norms.

Mandatory reporting under POCSO

Section 19 of the Act provides for the reporting of offences. The provision mandates that individuals report instances where there is a reasonable belief that an offence under the POCSO Act might take place, or if there is knowledge that such an offence has taken place. People have to report such information to the local police or the Special Juvenile Police Unit.

But the fear of triggering a formal police complaint often deters children and teenagers and their family from seeking the support they require, creating a barrier to accessing protection.

For instance, earlier this year, a mother had filed a petition in the Delhi High Court seeking authorisation for the medical termination of her minor daughter’s pregnancy. The woman had refrained from reporting the consensual relationship between her daughter and a minor boy and the subsequent pregnancy to the police fearing “social stigma, ostracisation, and harassment”.

Mandatory reporting, thus, puts minors in precarious situations. It forces them to resort to unsafe alternatives, such as non-registered and unqualified medical practitioners, to terminate a pregnancy due to the fear that authorised medical facilities, including gynaecologists and psychiatrists, will promptly report their circumstances and entangle them in the criminal process.

At the same time, professional medical practitioners are reluctant to terminate pregnancies without filing a police report as failure to comply with the mandatory reporting provision carries the possibility of a jail term.

Credit: AFP.

Right to privacy of teenagers

In the midst of evolving societal norms, adolescents aged between 16 to 18 are inclined towards exploratory ventures, often in the form of physical experimentation, aimed at comprehending their own sexuality.

In January 2021, the Madras High Court had observed that adolescent romance was an important aspect of developing “self-identity, functioning and capacity for intimacy” and that youngsters should be supported, not criminalised.

This aligns with the United Nations Convention on the Rights of the Child, ratified by India. Articles 5 and 12 of the convention underscore the importance of involving children in decisions that pertain to them, considering their evolving capacities.

But the existing provisions of the POCSO Act infringe upon the fundamental right to privacy accorded to minors as they are obligated to report incidents despite having the right to refuse such reporting based on informed consent.

Consider, for instance, the case of Olius Mawiong vs State of Meghalaya from last year where a 17-year-old girl was living with a man she had married.

The mandatory complaint under Section 19 of the Act was filed by the girl’s mother who had been advised to do so by the police as the teenager was found to be pregnant during a medical checkup. Such a situation where a report is mandatory, even against a victim’s preferences, increases the likelihood of a reluctant victim becoming uncooperative during prosecution.

Romantic relationships in legal tangle

A 2013-2015 survey conducted in Delhi by the Centre for and Child and the Law, under the National Law School University of India found that 28% of the cases filed under POCSO during that period involved individuals aged 16 to 18. In 90% of these cases, the alleged perpetrators were acquitted due to the victim’s inability or reluctance to testify against their sexual partner.

In a situation where an individual is accused of a sexual offense involving consensual activity, the compulsion to report such an incident might inadvertently lay the groundwork for their unjust incrimination, culminating in an erroneous conviction.

A report by the HAQ Centre for Child Rights on the implementation of the POCSO Act in Delhi and Mumbai highlights the excessive court time spent on cases of romantic relationships due to increased age of consent – from 16 to 18 – leading to uncooperative witnesses and failed prosecutions.

A five-state study by the Centre for Child and the Law, National Law School of India University, on the functioning of Special Courts set up under the Pocso Act showed that in at least 20% of decided cases, the victim admitted to being in a consensual relationship or marriage with the accused.

A report from last year by the thinktank Vidhi Centre for Legal Policy states that for every one conviction in a POCSO case, there are three acquittals. Further, it takes, on an average, 509.78 days for a POCSO case to be disposed of.

The consequences of a legal case ripple far beyond the young individuals involved, casting a wider net of implications that can strain familial relationships and compound the challenges faced by all affected parties.

There are also concerns about the potential misuse of these provisions by parents and guardians to intervene in relationships they disapprove of. The Delhi High Court in 2021 asserted that the filling of cases by police under Pocso at the behest of a girl’s family is an unfortunate practice.

Credit: Kelly Sikkema via Unsplash.

Updating the act

Before the enactment of POCSO, offences against children were handled under generic provisions of the criminal justice system that were inadequate to address the full spectrum of sexual exploitation faced by minors.

But while the intention was to protect children, this stringent approach is inadvertently bringing youngsters who have done no wrong within the purview of the criminal justice system, seemingly contradicting the fundamental principle of safeguarding their innocence.

An important consideration is the possibility of transitioning from mandatory reporting to voluntary. Such a shift will allow individuals with concerns or information about potential child sexual abuse cases to report them voluntarily, rather than being legally obligated to do so. It will require careful consideration and the establishment of clear guidelines to ensure that potential cases are not overlooked.

Within the framework of POCSO, the act of consensual sexual engagement among minors assumes the mantle of a penal transgression. A more informed approach towards obligatory reporting and the legal framework must ensure an equilibrium between the imperatives of the criminal justice system and the just treatment of minors.

Courts have often interpreted the POCSO Act strictly. For instance, the Supreme Court’s 2017 judgement unequivocally asserts that no child under the age of 18 can provide valid consent for sexual intercourse, be it explicit or implicit. However, there is a pressing need to revisit this perspective. Instead of solely relying on the child’s age as a qualifying criterion, the focus should shift to assessing the child’s capacity to comprehend questions and formulate reasoned responses.

A changed approach, thus, will place emphasis on a child’s cognitive abilities rather than merely their age. Despite the recognition of the legal and developmental maturity that comes with this age bracket, prevailing societal attitudes and norms can fail to accord due weight to these perspectives.

This leads to a disparity between understanding adolescent agency in sexual matters and its practical acknowledgment in society. Such a discrepancy points to the need for a comprehensive and consistent integration of these principles into the broader cultural consciousness.

The original intent of the POCSO Act was to safeguard children from sexual offences, not allow it be misused as a tool to manipulate the legal process, nor entangle consenting adolescents with criminal proceedings.

Anubhav Kumar is Assistant Professor of Law, National Law University, Punjab.

Prakhar Bajpai is a third-year law student at the National Law University, Punjab.