Abstract
The aim of this research paper is to analyse the validity of a minor’s consent in POCSO cases. Indian Government enacted The Protection of Child from Sexual Offence Act 2012 to protect minor from Sexual harrasment. But recently the topic of consent of minors in POCSO cases became a hot topic of debate all over the country. According to the POCSO act the consent of minors (aged below 18 years) is irrelevant to the case. Even many times a minor gets punished for establishing sexual relationship with another minor although there was consent. Last year in March the honourable Supreme Court raised concern about the rising number of cases where minors are punished under POCSO act. So the question which arises here is whether the age factor mentioned in the POCSO Act for consent is right or does it need new amendments. Even various High Courts have raised serious concern for the provision of act which states that consent of minors (aged below 18 year) as irrelevant. So let’s try to understand the validity of minor’s consent in POCSO cases through various National and International Laws and various judgements.
Keywords
Minor’s Consent, POCSO Act 2012, Sexual Harrasment, Consensual Relationship
Introduction
In modern times there is a dire need for the acceptance of sexuality of adolescents by society. When a child grows into a adult, during the process of growing, the child starts to make several decision by himself/herself and some of which involves sexual decision as well. However society doesn’t accept these things.
And the same attitude is represented in the POCSO Act, 2012. According to the act the consent of minor while establishing sexual relationship is irrelevant. The POCSO Act clearly defines a child as someone aged below 18 year and their consent is not recognised by the law. Therefore, any consenual sexual relationship between two adolescents where one person is below the age of 18, is a criminal offence liable to be punished under POCSO Act 2012. However we need to understand that adolescents have the right of sexuality, they explore themselves, and in the process of doing so some of their decision are related to sexual relationship. When two adolescents are in a consensual sexual relationship then criminalising it and treating the case under The POCSO Act is doing wrong with the adolescents of our country.
The objective of this research paper is to show the growing needs of the time and that the state must not neglect the need to respect the decision of adolescents. Even many High Courts have raised similar questions and have suggested lowering the age cap mentioned in the act. So let’s analyse the validity of consent by adolescents (aged below 18 years) in such cases.
Research Methodology
This research article is based on the doctrinal research technique, and I examined and understood the concepts that already exist on this topic by reading a variety of publications, books, journals, and online resources. Researchers have referred to a secondary source of data to analyse the validity of minor’s consent in the POCSO Act. Secondary sources of data include books, journals, articles published by various governmental and non-governmental agencies.
Review of Literature
A Case for reconsideration of Age of Consent in India[1]
The researcher in this article has expressed his viewpoint for the need to reconsider the age of consent. The author was of the opinion that the society needs to accept decision made by a adolescents even if some of them are sexual decisions. The researcher here explained how the age cap is different in different jurisdictions.
The Researcher gave example of the judgements of South African Court and Zimbabwe Court and the interpretation made by them regarding the age of consent for sexual relationship. However the researcher was very careful in expressing his viewpoint. He was very careful in expressing that the age cap needs some amendments but the age gap should not be too wide. For example if the victim is 17 year old and the accused is 40 year old then there is more chance of grooming by the accused as compared to a consensual romantic relationship. So the Courts should carefully interpret the minor’s consent in such cases.
How courts are ‘creatively interpreting’ grey zone between minors & consent in POCSO cases[2]
The author in this article raised some serious questions like how the law views consent among children and many other questions. Here the author referred to a recent judgement by the Nagpur bench of the Bombay High Court. Here the bench held that consent of minors had no value in the eyes of law. Then the author mentioned about a case last year where the Bombay High Court, although recognised that consent of minor is not legally valid, noted that the consent by minor to establish sexual relationship is a grey area under the law.
Later on the author mentioned about judgements of Delhi High Court and Meghalaya High Court. The aim for reference of these judgement is to show that various High Courts do take note of consent in the bail plea. In both the judgements the High Courts have granted bail to the accused taking note of the consent by minor.
Consent of Minor in POCSO Cases
Romantic relationships are a common thing nowadays especially during adolescence. Healthy romantic connections among adolescents have an important part in shaping their personal conceptions about intimate relationships and sexuality, as well as having a long-term impact on self-esteem and overall well-being as they go through life. As per the POCSO Act 2012 consent of minor in a sexual relationship has no value in the eyes of law. And right now nearly a decade has passed but studies regarding this area are very limited which is related to its implications and functions. There are very few discussion and studies present which touched the sensitive topic of consent of minor in sexual relationship. Therefore considering that even consenual sexual relationship comes under the ambit of POCSO Act, there is need to discuss more about the sensitive subject of consent of minor. The aim of this research paper is to discuss how the POCSO Act affect adolescents of our country and legal perspective of consensual sex in our country.
In the case of State of Madhya Pradesh v. Balu[3] The Supreme Court held that consent of minors has no value in the eyes of law hence it is not valid. However we know that India is a signatory of the Universal Declaration of Human Rights. And Article 12 of UDHR[4] states that every individual has the right to protection against unnecessary interference. And the same thing got recognised by the Supreme Court under Article 21[5] in the case of Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & others.[6]
Our Indian Government should think about what is happening around in the world regarding this issue. The age of consent varies in every jurisdiction. But one common thing is that either the age is between 16 to 18 years or the government is trying to correct this issue. For example in Japan there is a movement in favour of increasing the age of consent to 16 years from the current age of 13 years. France is also working on a law which will make the age of consent 15 years to protect them from sexual exploitations. So let us understand the complete matter, issue regarding this and what could be the solution to this.
What is the Age of Consent ?
The age of consent is variable across the jurisdiction and the activities concerned. As an example for driving the minimum age is 18, for voting it is again 18 years, for marriage it is 21 years for a boy and 18 years for a female, for having sexual relationship the age cap is 18 years, and if the person has to drink alcohol then the age varies according to the jurisdiction.
Thus we can term it as the age when the law recognises that a person is able to make decisions for those particular activities. But a question arises from here. Is the legal age at which a person is able to make decisions similar to the actual age at which an adolescent becomes able to make decisions for himself/herself.
So what should the government do here ? In my opinion the government should try to balance the duty to protect child from sexual exploitations and to give recognition to the evolving capacity of adolescents of our country.
Now what is the concept of evolving capacity ? If we look at all this through the legal perspective then we will understand that the law is trying to say that adolescents below the age of 18 years are not able to make sexual decision for themselves. But in reality is it truth that as soon as the person becomes 18 year old, he/she gains every knowledge regarding this and now the person is allowed to make sexual decision ? The answer is No. It is a journey which started from a 15 or 16 year old guy throughout his/her youth.
Even in its General Comment no. 7 on ‘Implementing Child Rights in Early Childhood’, the Committee accepts that children go through a process of maturation, and in this process, they learn continuously.[7]
Now in my opinion the primary focus of the state, at the time of determining the age of consent, should be to make a balance between evolving capacity of adolescents and to protect them from sexual exploitations. Even the UNCRC, in its general commitment 20 that state parties aims of protecting children from sexual exploitations should be worked with realising the concept of evolving capacity.
There are also some judgments from Africa which can help us to understand this issue clearly. The Constitutional Court of South Africa in Teddy Bear Clinic v. Minister of Justice and Constitutional development[8] declare a law unconstitutional. The law which was declared here unconstitutional criminalizes consensual sex between adolescents. Here the court termed the law as unconstitutional because in their opinions it was a violation of the right of privacy and dignity of a child. So now if we think clearly then we can say that here the court tried to explain the concept of evolving capacity.
Even the Zimbabwe High Court in the case of State v. B Masuku[9] tried to explain the same thing. In that case there was a 17 year old boy who was involved in a consensual sexual relationship with a 15 year old girl. Here the court said that they understand that the law was made to protect children from sexual exploitations or to protect them so they can’t get any sexually transmitted disease. But the court also said that the society should try to understand that consenual sexual relationship between adolescents is very common nowadays. And if the society wants to protect them from the above mentioned harms then they should try to educate them. But criminalisation won’t get the right result and it is wrong.
What is the problem in judicial recognition of ‘consent’
The law in our country is crystal clear. If a person get into a sexual relationship with a minor then that person shall be held guilty under the provisions of POCSO Act. But still various High Courts have advised the legislature to amend the age of consent. And some went one step ahead by sidestepping the law and recognising the consent of adolescents.
In State v Akhilesh Harichandra[10] there was a minor girl. She ran away with the accused and married him. The special court here said that the girl was very much aware of what she was doing and whatever she did was of her own will. So here the court citing the decision of Bombay High Court acquitted the accused.
Consent is a very complicated thing to apply in a law. Like here we discussed how consent is important even if it is given by a minor. But this consent can also come from any type of coercion or societal pressure. So the court should also take care while interpreting the fact that the consent is genuine or it is forced.
Many times courts also interpret some action as a consent. Like if the victim went to any place with the accused, passive inaction or running away with the accused, then at many times special courts consider these acts as a form of consent. Hence the judiciary should be very careful in understanding the consent.
Relevant Judicial Decisions
On the issue of consent in POCSO cases, Madras High Court has been passing some judgments that are very progressive. Let’s just read one such judgement.
The Case and the ruling
There was a case filed against a auto driver for aggravated penetrative sexual assault of a minor under POCSO Act. The case was heard by the Madras High Court. The Court in this case acquitted the accused. The rationale behind this judgement was that POCSO Act was not intended to bring romantic sexual relationship between adolescents under its ambit. Further the Court also suggested some reforms in the POCSO Act.
Concerns related to this judgement
The primary issue with this judgement is that it goes against the ruling of the Supreme Court where the honourable court held that the consent of minors in POCSO cases is not valid in the eyes of law. Also the parliamentary committee in 2011 prescribed a uniform age of 18 so that the rape cases or sexual assault cases can be treated focusing on the fixed age of 18 for the issue of consent. Thus the consent was never meant to be an exception in POCSO cases.
Way Ahead
The judgement was very progressive and a much needed decision in the present time. Many people get punished for the offence of rape even when there was a consenual sex between both adolescents. And primarily the male becomes victims of this issue of consent in POCSO cases. Many times when the family of the female adolescents find out about the relationship they lodge a complaint of sexual assault agains the male even when there was a consent. So this issue of consent needs a more progressive thinking and the legislature should also think about amending the POCSO Act so that this issue of consent can be resolved.
This judgement shows why the POCSO Act needs to be amended urgently. The Court should try to create a balance between the law whose aim is to protect child from sexual exploitation and the evolving capacity of adolescents. And this balance can only be maintained only if the legislature agrees to clarify the core wrongs which were meant to be corrected by the POCSO Act.
Suggestions
There is no doubt that the POCSO Act was a commendable step taken by the legislature of our Country. But still it needs modification. Let’s take a look at the report by the National Crime Record Bureau, 2015[11]. According to this 4114 cases out of the 8833 registered POCSO cases under section 4 and 6, were of adolescents aged between 16 to 18 years. Now if we look at this through the legal perspective, then without doubt the consent of minors is legally not valid. However many legal scholars are of the opinion that it is a consensual act between two adolescents and it should not be criminalised. And this ongoing debate raised several questions in terms of reconsideration for the age of consent. So what should be done to correct this. How should the law be changed ?
One solution could be the close-in-age exemption or age-span provision. These are used in Canada and the U.S.A. So this concept tells us what should be done in cases where there is a consensual sexual relationship between adolescents who are below the age of consent. So in such cases if the age gap between both is less, then there should be no criminalization. The rationale behind this is that if the age gap is less then there is very less chance of sexual exploitation and most probably it could be romantic relationship.
However if the age gap is more then there are chances of sexual exploitation because there is less likelihood of a relationship. So here the Court should take action.
Conclusion
Our country needs to balance two principles. One is to protect them from exploitation and the other is for the evolving capacity of adolescents. So here we can say that the law is doing very well for the former, it forgets about the latter. The law needs to recognise the evolving capacity of adolescents. The need of the hour is to give autonomy to adolescents to engage in and explore sexuality in a safe and healthy manner. School education and mass awareness are the two sources which can help us to achieve this.
Article 3 of UNCRC mandates that state parties should try to make a balance between the evolving capacity of adolescents and to protect them from sexual exploitation. The POCSO Act is doing pretty well in the latter but it doesn’t recognise the capacity of adolescents. The Legislature has clearly shown it’s stance through the POCSO Act that they are denying the fact that adolescents go through a phase of maturing and exploring themselves.
Adolescents have the right of sexuality which clearly is not recognised by the government. This can be understood through the act of government by fixing the age of consent at 18 years which has many harmful effects on adolescents.
The first harmful effect is the criminalisation of consensual sexual act between two adolescents. Now this criminalisation acts as a barrier between the adolescents and any mental or medical health professionals help. They get scared thinking that they have done a criminalised act and if they will take any medical help then they will get reported to police which will result in their conviction.
The aim of the law should be to make a balance as mentioned in the Article 3 of UNCRC[12]. The law need to understand that adolescents have consensual sexual relationship and criminalising it will have harmful effects on the adolescents. Hence the law should not criminalise it. But at the same time the focus of law should also be to protect adolescents from sexual exploitation. As mentioned above the law can use the concept of close-in-age exemption or other useful concept to solve this issue.
Authored by – Nitesh Shukla. National Law Institute University Bhopal
[1] Umang Arya, A Case for reconsideration of Age of Consent in India, Latestlaws.com (Oct 12, 2020), https://www.latestlaws.com/articles/a-case-for-reconsideration-of-age-of-consent-in-india/
[2] Apoorva, How courts are ‘creatively interpreting’ grey zone between minors & consent in POCSO cases, The Print (Feb 15, 2022, 11:09 AM), https://theprint.in/opinion/how-courts-are-creatively-interpreting-grey-zone-between-minors-consent-in-pocso-cases/832026/
[3] State of Madhya Pradesh v. Balu (2005) 1 SCC 108
[4] Universal Declaration of Human Rights <https://www.un.org/en/about-us/universal-declaration-of-human-rights> Last accessed on 22 February 2022.
[5] India Const. Article 21
[6] Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & others AIR 2015 SC 3081
[7] UN Committee on the Rights of the Child (CRC), General Comment No. 7 (2005): Implementing Child Rights in Early Childhood < https://www.refworld.org/docid/460bc5a62.html> accessed on 22 February 2022.
[8] Teddy Bear Clinic v. Minister of Justice and Constitutional development 2014 (2) SA 168 (CC).
[9] State v. B Masuku [2015] ZWHHC 106
[10] State v. Akhilesh Harichandra Spl. C. No. 165 of 2015 decided on 28-01-2016 (Thane).
[11] National Crime Record Bureau Crime in India 2015 statistics. New Delhi: National Crime Record Bureau, 2015.
[12] Article 3, United Nations Convention on the Right of the Child <https://www.ohchr.org/en/professionalinterest/pages/crc.aspx#:~:text=For%20the%20purposes%20of%20the,child%2C%20majority%20is%20attained%20earlier> accessed on 22 February 2022