Should the law not invest in comprehensive sexual education instead of pushing adolescents into the criminal justice system, question researchers Swagata Raha and Shruthi Ramakrishnan
THE Karnataka High Court, in Rama @ Bande Rama versus State of Karnataka on August 2, quashed criminal proceedings of rape and kidnapping under Sections 363, 376(3) and 366 of the Indian Penal Code, and Sections 4 and 6 of the Protection of Children from Sexual Offences (‘POCSO’) Act, 2012. The complaint was filed by the father of the victim girl, who was 17 years old, and the accused was 20 years old. The girl deposed that the relationship between her and the accused was consensual. Subsequently, they got married and had a child.
The single-bench judge of Justice M. Nagaprasanna, noting the ‘plethora’ of judgments that have quashed trial proceedings on account of the marriage between the parties, observed, “If the victim is going to turn hostile in a trial at a later point in time and the petitioner gets acquitted of all the offences, the sword of crime would have torn the soul of the accused.”
Swagata Raha and Shruthi Ramakrishnan are researchers at Enfold Proactive Health Trust, an organisation that aims to address gender-based violence and sexual abuse, through education, awareness, rehabilitative support for survivors of child sexual abuse, and restorative processes with children in schools and the juvenile justice system. Enfold has studied ‘romantic’ cases registered under the POCSO Act, to understand how they enter the criminal justice system and what is happening in these cases.
Raha and Ramakrishnan spoke with The Leaflet to address the need for revising the age of consent of older adolescents under the POCSO Act.
Q: You have questioned the existing age of consent, set at 18 years, under the POCSO Act. Can you explain why this legislative reform is needed?
A: Under the POCSO Act, a ‘child’ is defined as any person who is below the age of 18 years (Section 2(d) of the Act). As a fallout of this, the Act does not recognise the possibility of any form of consensual sexual activity among or with minor adolescents. Consequently, we find a significant proportion of cases being registered under the POCSO Act pertaining to situations when girls are leaving their homes with their romantic partners. These cases are usually initiated by the parents of these girls who approach the police with a missing complaint. Later, when she is traced, it emerges that there has been sexual contact between the girl and her partner, and that results in the inclusion of charges under the POCSO Act as well.
Now the question arises: why are these girls running away? Studies have shown, including studies by Enfold, that girls are running away from violent households, or from forced marriages, or where there is a lot of disapproval towards their romantic relationships. They also feel trapped and are dissatisfied by the lack of opportunity for them in the form of meaningful education or employment, and feel that this is their ticket out to a better life.
We need legislative reform because these cases are being filed as rape and POCSO cases, and are essentially wrecking the lives of the young people involved. Boys and young men are facing criminal prosecution for very serious offences, and it is also resulting in the institutionalisation of the girls in government shelter homes when there has been a fallout between the girl and the parents.
In such cases, girls have to stay in these institutions until they attain the age of 18 years or until they agree to go back to their families. Their lives come to a complete halt. These childcare institutions are of varying quality, and not all of them enable access to education. If these girls are pregnant, then there is an added implication in terms of their health.
We have dealt with situations where the girl was emphatic that she forced her partner to elope because her parents were against the relationship and were going to arrange her marriage. The boy felt compelled to rescue her from such a plight and eloped with her, and was later implicated as an accused in a rape case.
When such cases are registered, one recognizes the possibility of coercion or grooming in these relationships. However, in a large majority of relationships, there are not many or any exploitative factors. They are consensual relationships among young adolescents that have to go through the entire cycle of a police investigation, a police trial, social humiliation and isolation, and the institutionalisation that results from it.
As our study has revealed, the majority of these cases are ending in acquittals as the girls are not testifying against the accused. Also, along the trajectory of the case, the couple has married, and the families have accepted the relationship, but unfortunately, under the criminal justice system, there is no way of recognising this at the trial stage. Besides, not every family or couple may have access to a lawyer to approach the high court (under Section 482 of the Code of Criminal Procedure) and have these matters quashed.
Q: According to you, what should be the minimum age of consent under the POCSO Act?
A: We recognise that adolescence is a phase where there are sexual feelings that arise and emerge. One cannot say that it arises at 18 years or post 16 years of age, and as adolescent development tells us, it can arise earlier. How do you draw the line between protecting and recognising the evolving anatomy of children, particularly adolescents? It is a tricky terrain, because there is a possibility of violence, exploitation and abuse, and “consent” being obtained through fraud or coercion, or grooming. How do you draw the balance between what is the age at which they need unconditional protection, when consent should not be considered at all, as opposed to when their consent should be recognised?
There is a need to recognise the possibility of consent in those that are above the age of 16 years. However, in cases of sexual violence against girls between the ages of 16 and 18 years, the victim should be entitled to all the protections provided for under the POCSO Act.
Q: Why do you think the dimension of ‘romantic’ cases was overlooked under the POCSO Act?
A: The POCSO Bill introduced by the Union Ministry of Women and Child Development, initially had a proviso which recognised consent of minors between 16-18 years, and considered whether it was obtained through deceptive means or against the will of the child or by use of force or violence. The primary objection to the inclusion of this exception arose when the Bill went to the Parliamentary Standing Committee.
Under the POCSO Act, a ‘child’ is defined as any person who is below the age of 18 years. As a fallout of this, the Act does not recognise the possibility of any form of consensual sexual activity among or with minor adolescents.
At that stage, some of the arguments that came up were that the age of a child should be uniform across laws, that is, it should be 18 years, as the United National Convention on the Rights of the Child (‘UNCRC’) also provides. The second argument was that if an element of consent is introduced, it would shift the focus of the entire trial on the conduct of the child instead of the fact that the child is the victim.
Not all child rights groups were in favour of increasing the age to 18 years. In fact, there were many child rights groups which were firm in the view that adolescent sexuality should be recognised. The National Commission for Protection of Child Rights had a parallel Bill that recognised adolescent sexuality even amongst adolescents who were younger.
These two arguments played on the mind of the members of the Parliamentary Standing Committee. The Ministry of Women and Child and Development had actually defended the exception, stating that criminalisation of adolescent sexuality would be detrimental. However, when the Bill was introduced, these clauses were removed and we have the law as it stands today.
Q: When the age of consent was debated during the time the Bill was introduced in the Lok Sabha, concerns were raised that lowering the age of consent will encourage child marriage or the trafficking of minors. What are your views on such concerns?
A: When it comes to the concerns about trafficking and child marriage, concerns pertaining to lack of effective implementation of these laws cannot be linked to the age of consent. The implementation of provisions related to trafficking or The Prohibition of Child Marriage Act, 2006 has been exceedingly weak and there are various factors responsible for it.
In the context of marriage, our research tells us that punitive laws do not help reduce the incidence of child marriage. If you look at the National Family Health Survey data, there has been a steady decline in the rate of child marriage, and in the last fifteen years the rate of child marriage has fallen from 47.4 per cent in 2005-06 to 23.3 per cent in 2019-21. This has been in large part connected to the educational opportunities made available, along with the overall socio-economic advancement in the country. It cannot be narrowly linked to the age of consent and assumed that if the age is lowered, the rate of child marriage is going to really explode.
We should also consciously avoid conflating the age of consent for sex with the age of marriage. This becomes pertinent when we are looking at the possibility of the age of marriage being increased to 21 years of age. What is it going to do? Is it going to really ensure that India lowers the incidence of child marriage, or are we going to see an increased number of people getting criminalised because they are making decisions for themselves as to when they want to get married? The question in the context of child marriage or in the context of regulation of sexuality is – what really is the criminal law being used for and what are the implications?
There is a need to recognise the possibility of consent in those that are above the age of 16 years.
With respect to the laws relating to trafficking, if any of those ingredients provided under them are made out, a case of trafficking would lie. It is possible to traffic an adult woman. In that sense, would we say that because an adult woman can consent to sex, therefore any form of trafficking case will not lie because one will see that it was consensual? It boils down to strong investigation and prosecution to ensure that the trafficking-related provisions are established.
Blanket criminalisation will not automatically strengthen our stance against trafficking or other concerns. The only solution is to strengthen the implementation of those laws. We cannot use the POCSO Act as a proxy mechanism to strengthen the weaknesses in other laws. We cannot lose sight of where the gaps are, and where they need to be addressed.
Q: In the case of Vikramsinh Champaksinh Parmar versus State of Gujarat (2020), in which a writ petition of habeas corpus was filed by the family of a 16-year-old girl who was involved in a romantic relationship with a minor boy, the Gujarat High Court noted a need for legal awareness to protect ‘young minor boys’ getting involved as offenders under the POCSO Act. What is your view on this observation of the court as a solution? Is legal reform required apart from awareness?
A: The POCSO Act also calls for various awareness-related steps to be taken (Section 43). But awareness of criminal consequences, although important, is not necessarily a solution for the inherent lack of nuance within the law. Minors and adolescents are forced to leave their homes because there is violence within the family; in the cases of girls, they have to leave because there are marriages arranged by the family against their wishes.
Awareness by itself is unlikely to deter young people from being in romantic and sexual relationships because they are biologically and naturally inclined into entering into these relationships, and exploring their sexuality. This is developmentally normal for them, and this is the age they are looking for connection and for intimacy.
The law must take into account that young people are sexual and it is normal for them to be in these relationships, and instead recognise that criminalizing them will be contrary to their best interests. It cannot treat 0-18 years as one homogenous group – a two-year-old is not the same as a seven-year-old, who is not the same as a 12-year-old, who is in turn not the same as a 16 or 17-year-old. Their need for legal protection differs and varies with their abilities, maturity level and evolving autonomy.
Q: In addition to the criminalisation of young minor boys, it is pointed out that by fixing the age of consent at 18, the law has, in turn, strengthened patriarchal power and curbed the freedom of minor girls in expressing their sexual choices. Can you explain the social consequences for a young adolescent girl, under the age of 18 years, in a consensual sexual relationship?
A: We see that several cases are filed by parents to reprimand or intimidate their young children from pursuing sexual relationships that they disapprove of. While the young minor boys face criminal charges, the girls are not necessarily off the hook. Young girls are being institutionalised in government-run shelter homes, which are actually meant to house children who don’t have safe homes or are living without any family support. This is particularly the case where parents are refusing to accept back the girls who have eloped with their partners, or girls who are refusing to go back to the parents for filing these particular cases.
The POCSO Bill introduced by the Union Ministry of Women and Child Development, initially had a proviso which recognised consent of minors between 16-18 years, and considered whether it was obtained through deceptive means or against the will of the child or by use of force or violence.
Several girls are forced to live in these institutions till they turn 18 years old, and this is further complicated when there is no age documentation to prove their turning 18 years old. Some of them are pregnant, and are left with no choice but to continue their pregnancy in these homes and even give birth in these homes without their family or any other social support.
Apart from this, they also face enormous stigma for not only pursuing a sexual relationship outside the confines of marriage or a relationship that is not socially accepted, but because their partners or husbands are now entrapped in a criminal case. This deflects away from their personal development or their education and instead, their time, energy and resources are being spent on dealing with legal processes.
Q: The Madras High Court recently suggested a nuanced approach, as opposed to blanket reduction of age, stating “The [POCSO] Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence”. Many countries have ‘close-in-age’ or ‘age-proximity’ to lay down the range of age within which a child can indulge in sexual intercourse. What is your view on this suggestion of the Madras high court on amending the law?
A: We have looked at different countries that have introduced close-in-age exceptions, and also studied the manner in which it plays out in the form of defence or an exception. However, will the introduction of a close-in-age as an exception stop the ‘romantic’ cases from getting registered? Or will it place an additional burden to establish whether they fall within the particular age bracket, and there is no presence of violence or any other elements that translate this into an offence. It would be for the court to determine whether or not the parties fall within the stipulated age gap, and whether those elements exist or not.
We cannot compare the Indian situation with countries in the West, many of whom have these close-in-age exceptions, as birth registration may have improved, but birth certification is still extremely low in many Indian states. Our studies have also shown that this is a heavily contested aspect of cases under the POCSO Act.
We cannot use the POCSO Act as a proxy mechanism to strengthen the weaknesses in other laws. We cannot lose sight of where the gaps are, and where they need to be addressed.
A close-in-age exception, firstly, will still result in ‘romantic’ cases getting registered, and the cycle of criminalisation will continue. The law will still be used by parents to regulate such relationships; that will not change even with a close-in-age exception. Secondly, it is also going to increase the amount of judicial time and resources that are going to be spent in determining whether the parties concerned fall within the age bracket.
Lastly, looking at the social context in which relationships take place in India, how do we determine what that ideal age gap is going to be? It is invariably going to be arbitrary. The court has said five years, but we see that relationships do take place where the age gap is slightly more. So what happens if it is five and a half years?
Q: In another case decided by the Madras high court last year, Justice N. Anand Venkatesh clarified that “he was not turning a blind eye to cases where the victim might, under the effect of trauma, convince herself that an element of consent was present”. What are your thoughts when the concept of consent remains blurry?
A: Consent, particularly in young adolescents and teenagers, is affected by a range of social factors – power imbalances in the relationship, the girls’ education levels, the power dynamic, and the patriarchal structure. Consent is valid only when it is devoid of any coercion or threat or misrepresentation. The doors of criminal law are and need to remain open for victims who want to file cases in respect of non-consensual sex.
In cases that are blurry, these have to be left to the wisdom of the court to look into what is happening in that particular case. It needs to be done in such a manner so as to avoid the abuse of the law by families to regulate the autonomy of adolescent girls.
The law must take into account that young people are sexual and it is normal for them to be in these relationships, and instead recognise that criminalizing them will be contrary to their best interests.
However, it is important to look for solutions outside the criminal justice system. How are we going to strengthen the agency and autonomy of girls and women? How do we empower all adolescents to exercise their sexuality in a way that is safe and respectful? It requires us to invest in comprehensive sexuality education so that they can make informed choices.
Q: Your recent article in The Hindu mentions the aspect of courts being burdened due to such ‘romantic’ cases that divert attention from the actual cases of child sexual abuse. Can you elaborate on that?
A: Our study, focussing on data from trial courts with respect to disposed cases under the POCSO Act, has found that “romantic” cases constitute nearly a quarter (24.3 per cent) of the total number of cases being decided by a POCSO court, which is a conservative estimate.
Our definition of a ‘romantic’ case is narrow. We have only looked at cases that make express reference to the relationship being consensual – in which the girl herself said that she is in a consensual relationship or where the court is arriving at this conclusion, or where a family member or prosecution witness, at any point, has pointed it out to be a consensual relationship. In our conversations within the system, the understanding is that the rate is much higher than our conservative 24 percent estimate.
The amount of time that is taken by the police or by the courts to address these matters is high. This is a huge burden on the trial and investigation mechanisms in the country. The limited time and resources we have are taken away from cases that need them the most. In each case that is filed, there is a set of steps that need to be taken – investigation, medical examination of the girl, the added burden of forensics, and the time of the court.
A close-in-age exception, firstly, will still result in ‘romantic’ cases getting registered, and the cycle of criminalisation will continue. The law will still be used by parents to regulate such relationships; that will not change even with a close-in-age exception.
When it comes to the police, a significant amount of time is spent tracing the couple when the couple has eloped. This would mean travelling to another state or another city to find out the whereabouts of the child. We understand that there is a possibility of trafficking or violence; at the initial stage, one doesn’t know whether or not the case was consensual.
Once the police bring that couple back to their jurisdiction, most of the time, based on a preliminary inquiry, a case of plain and simple consensual relationship is made out where the parents may not be in favour of the relationship. But, such cases would still go to trial. At the trial court level, one has to go through the examination and cross-examination of witnesses, and the consideration of other formal witnesses. Most of these cases take more than a year to be disposed of. As per the latest National Crime Records Bureau data, the pendency rate in courts in such cases is high, and was 92.6 per cent in 20210.
In whose interest is it for us to criminalise these cases? It is certainly not advancing the best interest of these children, and neither is it advancing the objectives of the justice system.
Q: In respect of the crisis in our system’s failure to protect the sexual autonomy of older adolescents, what effects are seen in their sexual health? Where does the solution lie?
A: Our priority has to be on empowering adolescents, and to address the real impact on their sexual and reproductive health. There is also an added dimension when a girl who is pregnant seeks services to terminate the pregnancy, and the mandatory reporting provision gets triggered (Sections 19 and 21 of the POCSO Act). Based on our interactions with medical service providers, young girls are being pushed towards unsafe abortions at home or resorting to back-door abortion places.
The amount of time that is taken by the police or by the courts to address these matters is high. This is a huge burden on the trial and investigation mechanisms in the country. The limited time and resources we have are taken away from cases that need them the most.
If they come into the formal healthcare system, it would mean that the case is filed against their husband or their partner. It has a lot of implications on their access to basic health services and general sexual information, where they are not able to get general medical advice when necessary. It affects their mental health as well, because every place where a revelation is made about her sexual life, the mandatory reporting obligation in the POCSO Act is immediately triggered.
India has the highest number of adolescents in the world. Are we creating an environment where they can thrive in making decisions in a responsible manner and also navigate through their sexuality in a healthy way? Or are we creating a climate based on fear by deterring them from having sex, and punishing them based on the view that they need to understand what they are doing is wrong and immoral?
Certainly, the approach of the law has been the latter, where it has taken a punitive and moralistic lens towards adolescent sexuality, which is clearly not working. A policy decision is needed in terms of how we really want to approach this. It is not just a violation of the rights of adolescents; we are also staring at a health crisis.
Besides the burden that is imposed on the justice system, it also perpetuates the misconception that all such acts among adolescents is non-consensual. The law is not allowing us to distinguish between what is consensual and what is not. It is very dangerous for the law to suggest that older adolescents engaging in these relationships are allegedly committing an act of rape.
We also need to address the dichotomy between the health programs in India and the law. Health programs like the Rashtriya Kishor Swasthya Karyakram are focussed on ensuring that adolescents have access to comprehensive sexuality information and services. However, the law mandates reporting if a ‘child’ seeks these services. Hence, the law and the health services are working at cross purposes with each other.
It is very dangerous for the law to suggest that older adolescents engaging in these relationships are allegedly committing an act of rape.
India is also bound by the UNCRC. The Committee on the Rights of the Child, in its General Comment No. 20 on ‘the rights of the child during adolescence’’, asks States to decriminalise factually consensual, non-exploitative sex among similarly-aged adolescents. How do we ensure our compliance with that as well?
And finally, the law also needs to change because it is the legal climate that is actually perpetuating criminalisation.
Q: What legal and social consequences can we foresee if the age of consent continues to be 18 years?
A: We are seeing a large number of cases under the POCSO Act being filed. We are already fighting against the misconception that a lot of victims lie or that there are a lot of false cases coming into the system. However, because “romantic” cases are within the justice system, it also affects how other cases filed under the Act are perceived.
Having consensual romantic cases under this system is making that fight so much harder. Boys facing criminalisation, being kept in prison and under judicial custody, and girls being institutionalised, affect their trajectory of life and development. They are now forced to address this crisis in their life.
The law stigmatises adolescents for something that is accepted as being a normal, and a natural part of growing up. If the law is based on the argument that they lack maturity, should we not invest and divert the resources towards creating an environment in which they have access to information and they are able to make better decisions, and in which there is comprehensive sexuality education, instead of pushing them into the criminal justice system?
If the law is based on the argument that they lack maturity, should we not invest and divert the resources towards creating an environment in which they have access to information and they are able to make better decisions, and in which there is comprehensive sexuality education, instead of pushing them into the criminal justice system?
There is also an implication of them being treated as adults. The Juvenile Justice Care and Protection of Children Act, 2015 provides that if there is a heinous offence, those above the age of 16 years can be tried as adults. Considering that sections 4 and 6 under the POCSO Act cover heinous offences and are invoked in situations of consensual relationships, we are trying to understand what is the extent to which children are being transferred into the adult system. Some Juvenile Justice Boards are automatically transferring the children to the adult system – even if it is a ‘romantic’ case; even if it is a case that is factually consensual. The possibility of these young people being tried and punished as an adult exists.
In 2018, in State of Gujarat versus Ashok Bhai, a 19-year-old boy was in a relationship with a girl, who was just shy of 16 years of age. The Gujarat high court noted it to be a ‘romantic’ case, but its hands were tied. The court, in appeal, ultimately increased the boy’s sentence, because the trial court had convicted and sentenced him to seven years whereas the minimum mandatory punishment is ten years of imprisonment. The court noted that awareness of the punishment needs to be created. However, that is not the solution – telling adolescents that they can be punished does not act as a deterrent.
As of 2018, India has a sex offender registry program under which, once there is a conviction of any sexual offence, the convict’s name will go into a sex offence registry. Thus, if a conviction is recorded in a matter of consensual sex, the convict’s name is going to be registered in that list as a sexual offender. Although most cases do end up in an acquittal, in the few cases that end in conviction, it will go up in a permanent record that will impact their education and employment opportunities in the future.
We need to keep in mind the long-lasting implications that this has.