“Age of Consent” Under the POCSO Act

Abstract

There have been several studies that have compiled data from different Indian States that reflect that a high number of cases of consensual sexual activity are prosecuted under the Protection of Children from Sexual Offences Act, 2012.

The POCSO Act has raised the “age of consent” from sixteen years to eighteen years. Such increase has resulted in consensual sexual activity, where one of the parties is an adolescent being criminalised.

What was the objective of raising the “age of consent”? If protecting children from sexual predators was the goal, has it been satisfied by increasing the “age of consent”? Has it resulted in criminalising consensual sexual activity, where parties are of an age where they know what is right and what is wrong? Is pre-trial incarceration justified in the case of a romantic relationship? Does consensual sexual intercourse with a sixteen or seventeen year old amount to a “moral” wrong that requires imprisonment for a minimum period of ten years or twenty years?

In this article, an attempt is being made to minutely scrutinise and analyse judgments under the POCSO Act. To arrive at a nuanced understanding, and so as to not get overwhelmed by the magnitude of cases, it is only the judgments of the Special Courts in Mumbai i.e. Greater Mumbai and Dindoshi, that have been examined. As only the judgments and orders of the Special Courts are in the public domain (on the court’s website), the authors have not had an opportunity to access the case records, such as, notes of evidence.

INTRODUCTION

With the enactment of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act), the offence of “rape” as then defined under the Penal Code, 1860 (IPC) was expanded to cover not only penile-vaginal penetration, but penetration by different parts of the body and objects into specified orifices of the child, and labelled, “penetrative sexual assault”. Along with the finer calibration of sexual offences, the legislature found it fit to raise the “statutory age of rape” or “the age of consent to sexual activity” from sixteen years to eighteen years, and to delete the discretion given to courts to impose a punishment of less than the minimum statutory sentence. Though such expansion of penetrative sexual offence was welcomed by child rights activists, the increase in the age of consent was met with a divided response, some for it, and others, against it.

The POCSO Act was amended in 2019, when the minimum mandatory sentence for penetrative sexual assault and aggravated penetrative sexual assault was increased to ten years and twenty years, respectively, with an addendum that the punishment for aggravated penetrative sexual assault “may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death”. Consequent to this amendment and the taking away of the court’s discretion in the context of sentencing, upon conviction, an offender will perforce undergo imprisonment for a period of ten years or twenty years, at the minimum.

It has been ten years since the enactment of the POCSO Act. It is necessary to examine the impact of raising the “age of consent”, as also, whether the POCSO Act has increased the reporting of sexual offences against children and enhanced the conviction rate.

DATA PERTAINING TO THE POCSO ACT

Data as reflected in Crime in India 2011¹ shows that 7112 instances of rape against children (Section 376 IPC) were reported at the all-India level, whereas data as reflected in Crime in India 2019 shows that 4977 instances of rape against children were reported at the all-India level. This decrease in numbers is attributed to the fact that Crime in India 2019, has a separate Table for sexual offences committed under the POCSO Act². Crime in India 2019 denotes that 26,192 incidences of penetrative sexual assault (Section 4 of the POCSO Act) and aggravated penetrative sexual assault (Section 6 of the POCSO Act) were reported in 2019. The rate of rape against children³ in 2011 was 0.6, and the same has increased to 5.9 in 2019 for cases registered under Sections 4 and 6 of the POCSO Act. A comparison of these figures portrays that reporting of penetrative sexual offences against children has increased manifold, but these figures could be due to the fact that the definition of “rape” has been expanded under the POCSO Act, that the offences under the POCSO Act are gender neutral, or that the age of consent has been increased to eighteen years. It may also indicate that the POCSO Act has enhanced the trust of victims and their caregivers in the criminal justice system.

It would be expected that a child’s journey through the criminal justice system would be facilitated by the child-friendly structures and trained personnel as mandated under the POCSO Act, thereby increasing the conviction rates, but that is not so. In 2011, the conviction rate for child rape was 31.8%, which minimally increased to 34.7% in 2019, under Sections 4 and 6 of the POCSO Act. This minimal increase becomes naught, when examined against the legislative changes brought about by the POCSO Act.

Is the increase in the number of cases being reported partly due to the increase in the age of consent? Has such increase in the age of consent resulted in criminalising consensual sexual activity, where one or both of the parties are below eighteen years? Is the low rate of conviction due to the prosecution witnesses turning “hostile” before the trial courts? Is the reason for such turning “hostile” due to cases of romantic relationships being prosecuted?

The National Crime Records Bureau (NCRB) data does not throw any light on what percentage of the cases reported to the police relate to consensual sexual activity, where at least one of the parties is below eighteen years of age. For this purpose, it is essential to peruse the record and proceedings of the Special Courts, constituted to conduct trials under the POCSO Act.

ANALYSIS OF “ROMANTIC RELATIONSHIP” JUDGMENTS

Perusal of judgments of cases disposed of under the POCSO Act by the Mumbai Sessions Court at Greater Mumbai and Dindoshi registered in court in 2019, as contained on its website, show that out of the total of 59 cases, in which trials were concluded, 33 cases related to “romantic relationship” (56%). In Greater Mumbai, 44 cases were disposed of, out of which 24 cases (54.5%) were those of romantic relationship. In the Special Court at Dindoshi, in 15 cases, trials were concluded⁴, out of which 9 cases (60%) were those of romantic relationship. In all these 24 cases prosecuted in Greater Mumbai and 9 cases prosecuted in Dindoshi, which involved romantic relationships, the accused were acquitted. In none of the romantic relationship cases in Greater Mumbai did the “victim” support the prosecution’s case. Before the Dindoshi court, in 6 cases of romantic relationship, the “victim” did not support the prosecution’s case (67%)⁵.

The data denotes that it was not the “victims” who had initiated criminal action. It was mainly her family members who approached the police stating that their minor daughter had been kidnapped. In Greater Mumbai, eleven (45.8%) of the informants were fathers, ten (41.6%) were mothers, and one each was a brother, police and the victim herself. In Dindoshi, five (56%) informants were mothers, two each were fathers and the victim herself. The fact that the informants were mostly the parents of the “victim” shows that the girls had no grievance against the accused. Moreover, the high rate of girl’s turning “hostile” to the prosecution’s allegation of penetrative sexual assault suggests that the girls were in a romantic relationship.

In 50% of the romantic relationship cases in Greater Mumbai, the first informant turned hostile or testified that they did not want to pursue the case against the accused, and several first informants did likewise during the Dindoshi trials. This data indicates that the parents’ initial opposition to their daughter’s choice of partner was the reason for them having approached the police, and by the time the parents’ testimony was recorded, they had reconciled to the fact that their daughters were happily married. In 75% and 67% of the cases before the courts at Greater Mumbai and Dindoshi, respectively, the “victim” and the “accused” had gotten married, and in 28% and 22% of the cases, respectively, a child had been born to the couple. The three “victims” who themselves registered the FIR had done so as they believed that their partners were unwilling to get married, but by the time the trials commenced, the “victims” had gotten married to the “accused” and they were living happily together.

As police are duty-bound to register FIRs and file charge-sheets, a large number of romantic relationship cases are before the Special Courts for trial.

RESPONSE OF SPECIAL COURTS TO ROMANTIC RELATIONSHIP CASES

As aforementioned, the “accused” have been acquitted by the Special Courts in all romantic relationship cases. Perusal of the judgments show that the acquittals have been on the ground that the “victim” could not recall her age when she had sexual intercourse, or that a valid marriage had taken place and the prosecution could not prove commission of sexual intercourse prior to eighteen years, or that the prosecution could not prove forcible sexual intercourse, or that the “victim” did not identify the accused, or that the “victim” was found to be above eighteen years when sexual intercourse occurred.

One would think that romance between the “victim” and the “accused” would be treated as a mitigating factor, but the police reports and charges framed reflect that cases of romantic relationship are handled as aggravated penetrative sexual assault per Section 5(l) of the POCSO Act⁶. In 13 cases (54%) and 5 cases (56%) of romantic relationship decided by the courts in Greater Mumbai and Dindoshi, respectively, Section 6 of the POCSO Act had been applied, and such cases were treated as “aggravated” i.e. punishable “with rigorous imprisonment for a term which shall not be less than twenty years”.

Though in 87.5% and 56% of cases in Greater Mumbai and Dindoshi, respectively, the “accused” were released on bail, there were cases of romantic relationship wherein the “accused” remained in custody till conclusion of trial. In one case, an “accused” remained in custody for two years and eighteen days before being acquitted, though the “victim” and the “accused” had gotten married.

IMPACT OF INCREASING THE “AGE OF CONSENT”

Sixteen years was the “age of consent” under IPC for more than eighty years⁷. What was the reason for having increased the age to eighteen years? The Statement of Objects and Reasons of the POCSO Act does not throw any light on this aspect. It relies on the United Nations Convention on the Rights of the Child (UNCRC) which “requires the State parties to undertake all appropriate national, bilateral and multilateral measures to prevent : (a) the inducement or coercion of a child to engage in any unlawful sexual activity”⁸, and (b) that “the data collected by the National Crime Records Bureau shows that there has been an increase in cases of sexual offences against children”, and (c) that such legislation is necessary “to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard to safeguarding the interest and well being of the child at every stage of the judicial process”.

Do the judgments examined of the Special Courts reflect that the “victims” were induced or coerced into underage sexual activity? The age and education levels of the “victims” show that they had sufficient maturity and knew what they were doing when they eloped with the person of their choice. Seventeen years was the age of the “victim” in 62% and 78% of the cases of “romantic relationship” disposed of by the Special Courts in Greater Mumbai and Dindoshi, respectively, and other “victims” were mainly sixteen or fifteen years of age. From 9 cases of romantic relationship entertained by the Special Court at Dindoshi, information regarding education of the “victim” girls could be gathered in 8 cases — 50% were studying in XIth or XIIth standard (junior college) or had completed their XIIth standard and 37.5% were in secondary school or had completed schooling⁹. In 1965, the Supreme Court in S. Vadarajan¹⁰ dealt with the term “inducement” in the context of Section 361 of IPC (kidnapping from lawful guardianship) and Section 363 of IPC (punishment for kidnapping). The Supreme Court, while holding that no inducement nor case for kidnapping was made out, observed : (S. Varadarajan case¹⁰, AIR pp. 944-45, para 7)

7. … She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area.

Applying the test in S. Varadarajan case¹⁰, the Special Court judgments do not reflect that the girls were “induced” or “coerced” into sexual activity. Not only were the girls on the verge of attaining majority, their educational qualifications and exposure to life in Mumbai indicates that they knew what they were doing. Hence, a couple of the judgments of the Special Courts refer to S. Varadarajan case¹⁰ while acquitting the accused.

Increase in the age of consent, has resulted in cases of “romantic relationship” taxing the criminal justice system. At the all-India level, 52% of the cases under the POCSO Act were those where the victims were between sixteen years to eighteen years, and in Maharashtra, 51% of such cases fell under such age group¹¹. How many such cases were those of “romantic relationship” is not indicated, but the judgments perused in Mumbai for 2019 show that more than 50% of the cases were of “romantic relationship” and that the majority of the “victims” were between sixteen years to eighteen years of age.

Criminalising of cases of “romantic relationship” within the age group of sixteen years to eighteen years, perpetuates gender discrimination in its application as the male adult/male child is being treated as an accused/child in conflict with the law, though the sexual activity is consensual in nature and the offence is gender-neutral. Such gender discrimination is reflected in the Mumbai cases as none of the “accused” were female in cases of romantic relationship. It is also important to note that in 2019, 77% of children in conflict with the law arrested under the POCSO Act were between the age group of sixteen years to eighteen years, of which only 0.4% were girls¹².

Due to the large number of POCSO cases instituted, the Special Courts are unable to expeditiously record the child’s statement and conclude the trials per the time schedule under the POCSO Act¹³. The all-India pendency of cases under Section 4 and 6 of the POCSO Act, at the end of 2019 was 88.8%¹⁴, and the Maharashtra pendency was 93.5%¹⁵. Speedy disposal of cases was the purpose for establishing Special Courts, but in 2011, when cases of “child rape” were handled by the regular criminal courts, the all-India and Maharashtra pendency was lower at 48% and 25%, respectively¹⁶. The rate of disposal being much higher in 2011, when the age of consent was sixteen years and there were no Special Courts, indicates that the POCSO Act has not fulfilled its objective of “speedy disposal”.

This high percentage of pendency of cases begets a question — are the cases of sexual violence against children receiving the attention they deserve, or are such cases being delayed due to the Special Courts having a heavy caseload of cases of romantic relationship, between the age group of sixteen years to eighteen years.

The data of Special Courts in Mumbai reflects that the legislature had arbitrarily and hastily raised the age of consent to sexual activity, without foreseeing its impact.

NEED TO RECONSIDER THE “AGE OF CONSENT”

Several authorities and expert bodies have applied their minds on the subject of the “age of consent”.

The Justice Verma Committee Report, on interpreting Article 34 of the United Nations Convention on the Rights of the Child, recommended that the age of consent under the POCSO Act should be reduced to sixteen years, stating that the POCSO Act “was aimed inter alia to protect children from sexual assault and abuse and not to criminalise consensual sex between two individuals even if they are below eighteen years of age.¹⁷”

Statistics of the National Family and Health Survey reflects the ground reality — “The NFHS4 (2015-16) records 11% of girls had their first sexual intercourse before the age of 15, and 39% before the age of 18. In the same survey, 6.3% of women who got married at the age of 18 years or above have reported having their first sexual intercourse before 15 years.¹⁸” In view of the ground reality and expert opinion, should not legislature reconsider the “age of consent” under the POCSO Act?

The High Courts too have observed that the “age of consent” should be reviewed. Dealing with the case of a seventeen-year-old girl who did not support the prosecution’s case, the Madras High Court, while acquitting the accused, stated¹⁹ that such “relationship invariably assumes the penal character by subjecting the boy to the rigours of the POCSO Act”, and that “the boy involved in the relationship is sure to be sentenced to 7 years or 10 years as minimum imprisonment, as the case may be”, and suggests to the legislature, “on a profound consideration of the ground realties, the definition of “Child” under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18.” Similarly, the Allahabad High Court, in an elopement case, where the couple had a child from their marriage, observed²⁰, when granting bail to the accused : : (Atul Mishra case²⁰, SCC OnLine All para 6)

6. Applicability of statutory provisions in the facts and circumstances of the case is not a mathematical exposition or its theorem. When the law courts apply to these provisions, we should be careful about what would be its end result. If after applying any provisions in a given facts, leading to a disastrous and catastrophic result, it is the duty of the courts of law to mellow down its rigors in order to achieve much more meaningful and swallowable application of that provision in a given facts and circumstances of the case.

And continued to say : (Atul Mishra case²⁰, SCC OnLine All para 18)

18. … if these teens decided to enter into nuptial knot and now they have baby out of this relationship, certainly rigors of POCSO Act would not come in their way. The girl is not sexually abused or no sexual assault was made upon her, nor has she been sexually harassed by the applicant, as contemplated by the object of POCSO Act.

Further, to safeguard the girl and the child’s future, the Allahabad High Court directed the husband/father to produce a bank draft for INR 5,00,000 in the wife’s/child’s favour.

Globally, the “age of consent” (legal age for sexual activity) provision is included in domestic legislations. The purpose for fixing the age of consent is “to preserve the special nature of childhood; to shelter children from sexual exploitation and corruption by adults”, and is premised on the assumption that below such fixed age, sex is physically and psychologically harmful²¹. Setting of the “age of consent” should consider the concept of evolving capacities of a child. General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence, published by the Committee on the Rights of the Child, explains the term “evolving capacities”²², and more particularly mentions, “State parties should take into account the need to balance protection and evolving capacities, and define an acceptable minimum age when determining the legal age for sexual consent. States should avoid criminalising adolescents of similar ages for factually consensual and non-exploitative sexual activity.”

CONCLUSION

The legislature should revisit the “age of consent” under the POCSO Act, so as not to unnecessarily push an adolescent into the criminal justice system, whether as a victim’ or an “accused”. It is vital to acknowledge that exploration and experimentation with one’s sexuality is a trait of adolescents, for which they should not be penalised. The Kerala High Court, referring to the POCSO Act, recently observed²³ : (Anoop case²³, SCC OnLine Ker para 2)

2. … Unfortunately, the statute does not distinguish between the conservative concept of the term “rape” and the “sexual interactions” arising out of pure affection and biological changes. The statutes do not contemplate the biological inquisitiveness of adolescence and treat all “intrusions” on bodily autonomy, whether by consent or otherwise, as rape for certain age group of victims.

The Kerala High Court described sexual activity amongst “students or persons young in age” as “a result of relationships that went beyond platonic love”.

Prosecuting and sentencing a person found to have engaged in consensual sexual intercourse with a sixteen or seventeen-year-old to a minimum sentence of ten years or twenty years is contrary to the principle of proportionality²⁴, which principle should be kept in mind not only when sentencing an offender, but also when enacting substantive criminal legislation. Legislators need to acknowledge that the successful enforcement of criminal legislation is dependent on its acceptance by society, as otherwise its defiance will be justified by those for whose supposed protection such law was enacted²⁵.

As the “age of consent” fixed by the POCSO Act is arbitrary, one would ask, what should it be set at. This is a difficult task. There are two factors that require to be kept in mind. Firstly, “to allow sexual freedom to young, physically mature people; and to protect young, psychologically immature people from harm and exploitation”²⁶. Secondly, it should be evidence based and done in a scientific and rational manner, with detailed deliberations amongst the relevant professionals; emotions cannot dictate the fixing of the “age of consent”.

Provisions of the law should be such that it addresses the extraordinary, and not ordinary situations — a law that criminalises normal behaviour and activity, arouses sympathy amongst the public towards the “accused”, instead of condemning his conduct. The POCSO Act by increasing the age of consent, prevailing in India for over eighty years, has done just that.

Till the “age of consent” is not thoroughly discussed, it is hoped that the courts will come to the rescue of adolescents in a consensual romantic relationship, and protect them from the harsh consequences of the POCSO Act.