POCSO’s conflict with young adults
Experts call for special provision for consensual relationships
New Delhi: They just knew they were meant to be together but their parents and the POCSO Act willed otherwise. Two years after they were caught, Shobhit (name changed), who was sent to a juvenile home on charges of rape, and Shanta (name changed) are now 18 and can’t wait to get back together.
The case of the couple is emblematic of many innocent young adults caught in this loophole of the Protection Of Children from Sexual Offences Act that fixes the age of consent at 18 years, say lawyers and activists.
“I kept screaming that it was a lie and we were in a consensual sexual relationship but no one listened. They all thought I had been misled,” Shanta told PTI, recalling what transpired after her father caught her and Shobhit together.
Over the years, the POCSO Act, which seeks to protect children from sexual assault, sexual harassment, and pornography, has often come in conflict with the role of consent in determining the nature of relationships between adolescents.
The Act defines a child as a person aged below 18.
According to Section 6 of the POCSO Act, “Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person and shall also be liable to fine, or with death.”
Child rights lawyer Anant Kumar Asthana said the way this law is applied in cases of minors in consensual sexual relationships has caused “stress and anxiety among all sections and this anxiety is particularly noticeable in the judiciary”.
He said many times such cases are not only love affairs but live-in relationships, which are recognised in the case of adults, he said.
“Sometimes these minors are also married. So in those cases, applying POCSO results in incarceration of both boys and girls,” he added.
Recently, the Delhi High Court said that the intention behind the POCSO Act is to protect children from sexual exploitation and that it was never meant to criminalise consensual romantic relationships between young adults.
The court made the observation while granting bail to a boy who married a 17-year-old girl and was apprehended under the Act enacted in 2012.
Tara Nirula, child rights lawyer at HAQ: Centre for Child Rights, said this is an issue which needs to be addressed.
“Around the world, there are laws like Romeo and Juliet laws. Some countries have lower age of consent at 16 years, I think something like this is needed. Courts should also be liberal when it comes to such cases,” Nirula told PTI.
Civil rights activist Yogita Bhayana stressed the need to clearly define charges on the basis of a girl’s statement so that people who are in a consensual relationship do not get entangled in such cases.
“It is happening with a lot of boys and we have many such cases,” she said.
Child rights activist Sunitha Krishnan, however, said this is a grey area.
About 90 per cent of the cases under the POCSO Act are of elopement, said Krishnan, the co-founder of Prajwala, an NGO which rescues, rehabilitates and reintegrates sex-trafficked victims into society.
“The eventual possibility of sexual exploitation in such cases can never be ruled out,” she added.
Krishnan further said, “A balance has to be created, the situation is so grey that one cannot say that this is wrong or right.”
The Padma Shri awardee suggested that a separate clause can be added to the POCSO Act stating that sex need not be only forcible but it can be between two consenting people as well.