Critical Analysis on the Concept of Consent given under the POCSO Act, 2012

Abstract

In the Indian penal Code of 1860 under sec 375, Consent is defined as clear, voluntary communication that the woman gives for a certain sexual act. The age of consent was 16 for unmarried girls and 15 for married ones. The POCSO (Protection of Children from Sexual Offences) Act, 2012 changed the consent age to 18 and does not make a distinction between girls who are married and those who are not. The concept of Consent given under the POCSO is often misused by many parents. We need certain changes under the POCSO act so that the rights of the other party are not infringed. In this paper, I’m going to discuss certain recommendations as well as changes which is necessary for the smooth functioning of law in our country.

Keywords: POCSO, Voluntary, Consent, Sexual act, Offences, Misused.

Introduction

Before POCSO, there was no certain legislation in India which would protect the rights of the children, although certain sections of Indian Penal Code were there, but it failed to provide any kind of gender neutrality. As, the number of crimes against children started increasing, a need for an act became a necessity. The creation of a law that specifically addresses the issue of the country's rising child sexual abuse cases was crucial. POCSO Act, 2012 was implemented on November 14, 2012, thanks to the work of numerous NGOs, activists, and the Ministry of Women and Child Development. In addition to emphasising the importance of children's rights and protection, the Act has been crucial in establishing a strong justice system for sexual abuse victims. Due to increased awareness, there has been a significant increase in the reporting of child sexual abuse incidents. Though this act provides gender neutrality as both girl and boy can be considered victim, but if we look at a larger scale mostly boys are accused for crimes. One of such major setbacks of this act can be seen in the concept of consent. The POCSO considers any sexual contact between adolescents to be unlawful because no exception has been made that would permit consenting sexual activity between teens, regardless of the gender, marital status, or age of the victim or the accused. The legal system is currently dealing with a flood of instances where the victim is a girl between the ages of 16 and 18 who has chosen to start a relationship with a man. The male gets booked under POCSO if these relationships go against the parents' wishes. The criminal justice system is left with little choice but to prosecute the adult male in this case and remain silent regarding the violation of the young children's right to sexual autonomy. 

Need of the Hour

According to the POCSO Act, we observe that a sizable percentage of cases involve girls leaving their homes with their romantic partners. These cases are typically started by the girls' parents, who go to the police and report the girls missing. When the girl is eventually located, it turns out that she had sexual intercourse with her lover, and this leads to the addition of charges under the POCSO Act as well. Legislative change is necessary because the lives of the young people involved in these instances, which are being filed as rape and POCSO charges, are effectively being destroyed. For really significant offences, boys and young men are being prosecuted in court. They must go through the complete cycle of a police investigation, a police trial, etc. even if they are in the majority of cases in consensual partnerships. The high number of acquittals demonstrates that the law is out of touch with the interpersonal social reality of adolescent interactions. The burden these cases place on our courts and the time they take away from the investigation and prosecution of true incidents of child sexual abuse and exploitation have an impact on how justice is delivered as well. We need legal reforms which would ultimately protect the rights of the adolescent people. 

Problems relating to Bail

We all know consensual sexual intercourse with a minor is not valid in the eyes of law as the Pocso act fixes the age limit to 18 years. As, a result courts in India are facing serious problems relating to matter of bail. It has been noted that even if consent is proved, it would not help the accused. The POCSO Act's provisions are also being creatively interpreted by judges to address situations involving consensual relationships between minors. We need changes in this act or, else there would be no equality as a boy under this act having consensual sexual intercourse would be treated in the same manner as that of a sexual offender. 

Legal problems if age of consent remains 18 years?

• This act would continue its punishments against the boys who participates in consensual sexual intercourse such as judicial custody & tedious trial procedures etc. 
• The name of the convict will be included there as a sexual offender if a conviction for consensual sex is recorded. Even if the majority of cases result in acquittals, those few convictions will remain on their permanent records and affect their future possibilities for school and job.
• Even in romantic cases where the parties are in agreement on the facts, some Juvenile Justice Boards automatically move the children into the adult system. These juvenile people might potentially face adult trials and punishment.
• As, the age limit is fixed, we often see hands of courts are tied.

Age of Consent

Age of consent is a debatable concept, if we take the example of India age of consent is different for different scenarios. For example, for the purpose of marriage age of consent is 21 for boys, & 18 for girls. However, for the purpose of drinking this age varies depending on the state where the person resides. Similarly, the age of consent for sexual intercourse is 18. We can say age of consent is the age when a person becomes capable of giving his/her consent for the proposed activity. Concept of Evolving Capacity? If we view everything from a legal standpoint, we will see that the government is attempting to assert that young people under the age of 18 are not capable of making their own sexual decisions. But is it really true that once a person reaches the age of 18, they have learned everything there is to know and can make sexual decisions? No, is the response. It is a journey that a 15 or 16-year-old boy embarked on throughout his or her youth. Now, in my opinion, the state should prioritise striking a balance between protecting young people from sexual exploitation while also taking into account their developing capabilities when deciding the age of consent. Even the UNCRC stated in General Commitment 20 that state parties should cooperate in realising the idea of evolving capacity in order to achieve the goal of protecting minors from sexual exploitation. Here, I would like to cite one international case law Teddy Bear Clinic v. Minister of Justice and Constitutional Development in this case the South African Constitutional Court ruled that a statute passed in 2007 that criminalised minors between the ages of 12 and 16 engaging in consensual sexual activity was unconstitutional. In this case, the court declared the law to be unconstitutional because, in their view, it violated a child's right to privacy and dignity. Now that we have a clearer understanding of the situation, we can argue that the court attempted to explain the idea of evolving capacity.

How consent under POCSO act can be interpreted along Article 14?

The main purposes of Article 14 of the Indian Constitution are to do away with arbitrary State action and guarantee equality for everybody. It is important to have a solid foundation when deciding whether a youngster engaging in sexual activity is a married or unmarried child. The institution of marriage currently serves as a licence to engage in either consenting or non-consensual sexual activity. Here I would like to cite another case law State v. Akhilesh Harichandra Mishra it was held that when the victim eloped with the accused, she was just 15 years old. Before the trial was through, they had a kid. The informant said that the couple was married and that she had no complaints, which led to the accused's acquittal. The Special Court acknowledged that there was a compromise in the case. The Public Prosecutor's claim that the POCSO Act makes consent irrelevant was rejected by the court. From, this we can conclude consent under POCSO act is also lacking equality before law and equal protection of law.

Concept of Romeo Juliet Clause

The government of the Philippines has also filed a law to raise the age of consent to 16 years old. A push to do so is also underway in Japan. Similar to this, the French government is also working to pass legislation to safeguard children, with the legal age of consent set at 15. In the past, there was no law in France to prevent minors from engaging in sexual activity. Currently, a bill to raise the legal consent age to 15 is being proposed by the French government. However, where there is a 5-year age difference, a protection has been given to such youngsters. The guy can be protected even if they have a sexual relationship, for instance, if he is 18 and the girl is perhaps between the ages of 13 and 17. Similar to the previous example, if a boy is 21–22 and a girl is 16–17, he can still be protected because it is thought to be the result of a love–cum-sexual relationship with a teenager. It is known as the Romeo and Juliet clause. This clause is so named because incidents like Romeo and Juliet's are the outcome of youthful infatuation. When the young gave their agreement to the sexual activity and there is a smaller age gap between the minor and the alleged offender, Romeo and Juliet laws offer some protection to those who violate statutory rape statutes. Many jurisdictions have an age-gap rule that allows for consenting sex with someone just a little older.

Judicial Interpretations

In the case of Rama @ Bande Rama v. State of Karnataka, the Protection of Children from Sexual Offences (POCSO) Act and IPC prosecutions were both dismissed by the High Court. A 17-year-old girl's father filed a complaint against her 20-year-old partner, which led to the start of the case. The girl testified in court that the acts were consensual, that she had married the defendant after turning 18 and that they had a child together.

In the case of Vijayalakshmi v. State Rep, it was held that under the POCSO Act, a prosecution was brought against an auto driver for aggravated penetrative sexual assault of a minor. The Madras High Court heard the matter. In this instance, the offender was cleared by the court. This decision was justified by the fact that the POCSO Act did not intend for romantic sexual relationships between minors to fall under its purview. The Court also recommended some changes to the POCSO Act. In this instance, it was determined that the offences at issue are completely individual and personal in nature rather than crimes against society. Only the families of the second petitioner and second respondent are involved. Two young people who are still in their early 20s are involved, and their future is at stake. The second respondent makes a meagre living as an auto driver. The proceedings' suspension won't have any significant impact on the case's overriding public interest, and it will actually provide the second petitioner and second respondent more time to settle down and consider better future opportunities. As a result, the same is quashed.

Recommendations 

There are certain changes which needs to be implemented in the POCSO Act, those changes are:

• One change can be the close-in age exemption if the consent is given by adolescent below the age of consent. Therefore, if the age difference between the two is small, there should be no criminality in such circumstances. The justification behind this is that there is less risk of sexual exploitation and more likelihood of a loving relationship if the age gap is smaller.
• Also, the Romantic Clause stated earlier in this article can be included in the POCSO act. But, also social circumstances in India also needs to be taken into consideration
• The Australian Government is currently putting up a new education policy that mandates the inclusion of classes on the age of sexual consent in the curriculum. Naturally, this will raise the minors' level of awareness.
• Also, it is important that Judges continue to interpret the act in proper manner.

Conclusion

I would like to conclude my article by stating that the problem relating to age of consent under POCSO is a very serious problem. Above recommendations needs to be taken into consideration and certain changes needs to be made to the provisions of the POCSO act. The capacity of adolescents must be recognised by the law as it develops. Giving teenagers the freedom to explore their sexuality in a healthy and safe way is urgently needed. The two resources that can assist us in achieving this are school education and widespread awareness. Though, POCSO act helps to prevent sexual exploitation but it does not provide any provisions for evolving capacity of adolescents. So, it should be taken into consideration.