POCSO Act must stop turning consensual relationships between adolescents into a crime

A study conducted by Enfold in Assam, Maharashtra, and West Bengal found that over 24 percent of the POCSO cases were romantic or involved consensual sexual relationships. (Representational image)

Decades of relentless advocacy by civil society and urging by the Supreme Court for a special law led to the enactment of the Protection of Children from Sexual Offences Act (POCSO) in 2012. With its child-friendly provisions and stringent punishments for offenders, the Act aimed to address legislative gaps concerning sexual violence against children.

However, the law's strict criminalisation, high age of consent, and mandatory reporting requirements have inadvertently affected adolescent sexuality in India, sparking concerns over their bodily autonomy.

Criminalising Adolescent Relationships

The Act defines a "child" as anyone below the age of 18, and it assumes that children are not capable of consenting to sexual interactions. This, despite the fact that sex amongst minors is fairly commonplace — data from the National Family Health Survey-5 reveals that 39 percent of women aged 25 to 49 had their first sexual intercourse before the age of 18.

This lack of recognition of social realities unfairly impacts individuals in consensual relationships, undermines their autonomy, and worryingly leads to the criminalisation of adolescent sexual relationships, even when they are consensual.

Data from the National Crime Records Bureau (NCRB) shows a steady increase in arrests under POCSO, particularly affecting boys. In 2021, out of 2,353 juveniles apprehended, an overwhelming 99.6 percent were boys. Similarly, in 2020 and 2019, 99.8 percent and 99.5 percent of the apprehended juveniles were boys. This indicates that young boys are disproportionately affected by the rigorous provisions of POCSO.

Furthermore, as a significant number of these cases entering the criminal justice system are cases of romantic relationships, they often end in acquittals. A study conducted by Enfold in Assam, Maharashtra, and West Bengal found that over 24 percent of the POCSO cases were romantic or involved consensual sexual relationships.

Unsurprisingly, most cases were filed by parents or relatives, and 93.8 percent of these cases ended in acquittals. The data highlights how the law that is meant to protect children leads to unnecessary arrests, deprivation of liberty of boys, and infantilises girls and deprives them of their right to autonomy, choice, bodily integrity and privacy.

Impeding Healthcare Access 

The mandatory reporting requirements under POCSO also present unique challenges. Section 19 of the POCSO Act obligates healthcare professionals to report underage sexual relations, but this provision predominantly affects adolescent girls, portraying them solely as victims without agency in relationships.

It impedes their access to sexual and reproductive health services in case of pregnancies, abortions, or sexually transmitted diseases. The fear of exposure and criminal action deters girls from seeking timely assistance, leading to health complications or reliance on unregulated healthcare methods.

India’s lack of clarity on where it stands on underage sex is made abundantly clear by the existence of central schemes such as the Rashtriya Kishor Swasthya Karyakram (RKSK), which aims to address adolescent sexual and reproductive health issues. While the RKSK focuses on unrestricted counselling and support to adolescents for the prevention of pregnancies and safe-sex methods, POCSO insists on mandatory reporting of sexual interaction between minors.

This, coupled with an absence of exceptions for consensual sexual relationships between minors, creates confusion among service providers, potentially denying adolescents the essential healthcare they need.

Judicial Pushback

Courts have attempted to correct this colossal wrong by acknowledging that consensual sexual acts among adolescents should not be penalized under POCSO. The Madras High Court, in the case of Sabari v. Inspector of Police (2019), emphasised excluding consensual sex after the age of 16 from rigorous provisions.

Similarly, the Bombay High Court in Ashik Ramjan Ansari v. the State of Maharashtra (2023) observed that punishing a minor boy engaged in a relationship with a minor girl would be against the best interest of either child. These judgments illustrate the courts’ powerlessness when confronted with a law that sends thousands of adolescents to jail for merely exploring their sexuality and engaging in natural and normative human behaviour.

POCSO, while aiming to protect children from sexual offences, has inadvertently encroached upon the privacy and autonomy of adolescents. The conflation of consensual behaviour with exploitative acts has transformed ordinary relationships among adolescents into criminal offences, and criminal law is being wielded to control such interactions.

To ensure a fair and effective approach, a careful reassessment is necessary, striking a balance between safeguarding children and preserving adolescents' rights and liberties. By addressing these unintended consequences, we can ensure a more equitable implementation of the Act, offering protection without compromising the autonomy of our youth.

Neha Singhal leads work in the area of Criminal Justice, and Ayushi Sharma is a Research Fellow with the Criminal Justice Team at Vidhi Centre For Legal Policy. Views are personal, and do not represent the stand of this publication.