The objective of POCSO is not to criminalise consensual sexual relations; it needs amendment: Justice Indira Banerjee

Justice Banerjee was speaking at a report launch on Thursday that brought together experts specialising in child protection to look at the ten years of the implementation of the POCSO Act. 


THERE are some provisions, such as that of a consensual sexual relationship between minors that need rethinking, Justice Banerjee, former judge of the Supreme Court, said during a report launch on Thursday.

The launch of the report, titled ‘A decade of POCSO: Developments, Challenges and Insight from Judicial Data’, was organised by the independent think-tank, Vidhi Centre for Legal Policy’s Justice, Access and Lowering Delays in India (JALDI) initiative and the Data Evidence for Justice Reform (DE JURE) program at the World Bank.

The report has analysed nearly 4,00,000 cases under the Protection of Children Against Sexual Offences Act, 2012 (‘POCSO Act’) from e-courts across 28 states and union territories, interviewed stakeholders and studied judgments in a select sample of cases.

Further speaking on the need to amend the law, Justice Banerjee said: “There could be a consensual sexual relationship between classmates, one of whom could be just above 18 years and the other could be 17 years and nine months.”

According to her, when cases like this come to the court, judges are in a dilemma, since the law is clearly against the boy, as a person below 18 years cannot give consent. The complainant is usually the family because the boy may not be settled, or because of inter-religious or inter-caste affairs, Justice Banerjee, the keynote speaker, noted.

The launch of the report was succeeded by a panel decision with experts including former judge of the Bombay High Court, Justice Dr. Shalini S. Phansalkae-Joshi; former Professor of Law and Founding Dean of the Tata Institute of Social Sciences’ School of Law, Professor Dr. Asha Bajpai; child rights lawyer, Anant Kumar Asthana; and public policy researcher, Devendra Damle. The discussion was moderated by JALDI Lead, Deepika Kinhal.

Referring to a case where she invoked the Supreme Court’s extraordinary powers, Justice Banerjee stated: “I had to exercise the power of the Supreme Court under Article 142…this was a case where the two had an affair. They had a consensual sexual relationship which had ended up in pregnancy, which was aborted. They later got married when they crossed 18 years of age. But the case, which was initiated by the family when the girl was a minor, followed even after they got married. 

“In the case of penetrative sexual assault, it is very difficult to get bail. So, for a boy of 18 or 19 years of age, when he gets accused of an offence like this, he may ultimately get acquitted. But he is finished…it may affect the relationship between couples”, she stated.  

“I personally feel, the law requires to be amended…there should be an exception if the girl is over 16 years old age”, Justice Banerjee concluded.

Judges know the law but gender sensitisation is required 

Justice Banerjee told the audience that the implementation of the POCSO Act has allowed the legal procedures related to sexual offences against children to become child-friendly. However, she pointed out that one of the most problematic things about cases involving children is that if you keep asking them about their traumatic experience, it causes them a lot of trauma. With smaller children, there can always with inconsistencies in their testimonies.

“If I were cross-examined right and left, I would probably also falter…and think of a small child who is been asked the same question over and over again,” Justice Banerjee said.

Justice Banerjee recommended that there must be gender sensitisation in courts for judges on how to deal with POCSO cases.

She told the audience that she could never possibly imagine a father sexually exploiting her own daughter. “I was so immensely close to my father. I could never imagine that…it was only in one of the legal camps that I met a victim of sexual exploitation by her own father.

“It may be rare. But it does happen. Children do get exploited even by their fathers. But getting exploited by relatives and cousins is quite common”, she stated.

The objective of POCSO Act is not to stigmatise children 

Justice Dr. Joshi, speaking on consensual sexual relationships between minors, termed it as a ‘grey area’ within the legislation. The objective of the POCSO Act, she noted, was to protect children and not to punish or stigmatise them.

“As a judge, we find it very difficult to deal with these situations because we do not want to punish the child merely because he has fallen in love. Falling in love is not an offence”, Justice Dr. Joshi said.

Around 24 per cent of the cases filed in the court are of romantic relationships, she noted. She further said that all the high courts have been expressing grave concern in these cases, and coming up with creative ways to deal with them.

She referred to a Calcutta high court judgment from last year wherein, Justice S. Bhattacharyya held that “penetrative sexual assault is when there is a unilateral act of assault…”

Best interest of the child must be considered 

Dr. Bajpai, referring to a case before the POCSO Act was implemented, pointed out how there was no law on male sexual abuse. She said, “The manner in which a 6 years old boy was cross-examined in court…the carnal intercourse against the order of nature could not be proved. It is not easy to prove Section 377 [of the Indian Penal Code, which deals with unnatural offences].”

Dr. Bajpai pointed out that India has ratified the United Nations Convention on the Rights of the Child and the ‘best interest’ principle is a significant part of it. However, she does not see it being used in any judgments relating to the POCSO Act.

“Sometimes, punishing the accused may not be in the best interest of the child. The child just wants the abuse to stop and does not want his or her father or grandfather to go to prison. So, the best interest has to be seen,” she concluded.

Key findings of the report 

The report reflects on the challenges of implementation of the POCSO Act and suggests corrective measures.

The key findings, presented by Apoorva and Sandeep Bhupatiraju from Vidhi, suggest that e-courts data on POCSO trials vary significantly across different states and districts.

Five districts with the highest number of POCSO trials, pending and disposed of, are Namchi in Sikkim, New Delhi and Central Delhi in Delhi, Medak in Telangana and West Garo Hills in Meghalaya.

Uttar Pradesh has the highest pendency, with more than three-fourths of the total POCSO cases filed between November 2012 and February 2021. While Tamil Nadu has the highest disposal percentage of all the states and union territories studied, the report notes.

The pendency of POCSO Act cases has been increasing gradually over the years. However, there was a sharp increase of 24,863 cases in the number of pending cases between 2019 and 2020, which could be attributed to the COVID-19 pandemic.

Further, for every conviction in a POCSO Act case, there are three acquittals, the report finds out. Acquittals are significantly higher than convictions for all the states studied. In Andhra Pradesh, acquittals are seven times more than the convictions.

In 2020, at 1,284.33 days, Delhi has the highest average case length out of the states and union territories studied. Chandigarh and West Bengal are the only states/union territories where the average time taken for convictions is within the statutorily prescribed period of one year.

Policy recommendations of the report 

The report recommends that the age of consent should be reduced from 18 years to 16 years with adequate safeguards. One of its key recommendations is to make the POCSO courts functional. It suggests that the appointment of adequately trained special public prosecutors exclusively for POCSO courts, where they have not been appointed, should be expedited.

The report also suggests that a hybrid approach must be employed for the recording of evidence such as of doctors and forensic experts. It must also be ensured that there is an appointment and continuous presence of support persons at every pre-trial and trial stage.