Why parliament must reexamine pocso

Why parliament must reexamine pocso

Chief Justice of India DY Chandrachud made an important call for legislative reform to address the gap in law that often leads to criminalisation of adolescent relationships. Parliament must take note, consult stakeholders.

Chief Justice of India DY Chandrachud on Saturday made an important call for legislative reform to address the gap in law that often leads to criminalisation of adolescent relationships. Speaking at the National Annual Stakeholders Consultation on Child Protection, the CJI expressed a “growing concern” underlined by several high courts. A stringent legislation, the Protection of Children from Sexual Offences (POCSO) Act criminalises all sexual activity for minors, that is, those under the age of 18 years. Cases involving consensual sexual activity of teenagers often end up facing the full force of law. “In my time as a judge, I have observed that this category of cases poses difficult questions for judges across the spectrum, ” the CJI said, urging that the issue 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.

The National Family Health Survey-5, 2019-21 (NFHS-5) shows 39 per cent of women had their first sexual intercourse before the age of 18 years. The POCSO Act, introduced in 2012 increased the age of consent from 16 to 18 years. The Indian Penal Code and other laws were subsequently modified to ensure cohesion with POCSO. Since the law leaves little room for discretion by trial courts, parties are often forced to approach the high courts for leniency. Invoking the “Romeo-Juliet exception,” many high courts cautiously acquit the accused in cases involving consensual sexual activity between minors aged between 16-18 years. But not all judges use the discretion similarly. In a 2021 decision, the Madras High Court cautioned that “it does not help matters to avoid acknowledging that the society is changing and influencing people’s identity and cognition, constantly.” A study by Enfold Proactive Health Trust, reported in this newspaper shows that 1 in four cases under the POCSO Act involve admission of romantic relationships.

Even when POCSO was enacted, policy makers were alive to this incongruity. A draft Bill specified that statutory rape would be triggered for minors between 16-18 years only in circumstances such as use of force. This was, however, dropped when the Bill was tabled in Parliament. There are valid concerns that adding a defence of consensual sexual activity could lead to putting the complainant’s conduct on trial or encourage parties to enter into a “compromise”. This is where stakeholder consultation and careful drafting to ensure the spirit of the law is upheld is important. Parliament must take notice and reexamine the law.