[POCSO Act] Equating Consensual, Non-Exploitative Sexual Acts Between Adolescents With Rape Undermines Bodily Integrity & Dignity: Calcutta HC

The Calcutta High Court has exercised its jurisdiction under Article 226 of the Constitution, and Section 482 of the CrPC to set aside an impugned judgement and order of conviction against the appellant who had been sentenced to 20 years imprisonment on charges of kidnapping of a minor under IPC and aggravated penetrative sexual assault under POCSO Act.

In observing that the appellant, and victim were both adolescent residents of the same village, and had engaged in a consensual sexual relationship, a division bench of Justices Chitta Ranjan Dash and Partha Sarathi Sen noted from the victim that she had voluntarily proceeded to the appellant's home to assume the role of his wife, and subsequently given birth to a child.

Upon hearing the victim's statement that she had voluntarily had an affair, and resided with the accused, and that the accused's mother was suffering from cancer, the Court had on an earlier occasion, granted bail to the accused.

Through the present judgement, quashing the ongoing criminal cases against the accused, the Court noted:

The victim stated before us that she and her husband belongs to a rural area and they do not have knowledge that their relationship and marriage constitute an offence. By equating consensual and non-exploitative sexual acts with rape and (aggravated) penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents. While the ostensible objective may be to protect all children below 18 years from sexual exploitation, the law's unintended effect has been the deprivation of liberty of young people in consensual relationships. The POCSO Act lumps all persons below 18 years together without consideration for their developing sexuality, evolving capacity, and the impact of such criminalisation on their best interests.

Court further asked the Law Commission of India and National Commission for Protection of Child Rights (NCPCR) to deliberate on the aspect of revising age of consent among consenting adolescents and to give their suggestions to the appropriate Government.

POCSO Act fails to recognise consensual sexual behaviour among older adolescents

In dealing with the present case, the Bench was told by the appellant's counsel that he was a rustic person, who did not have any knowledge that he had committed an offence by marrying the victim, whom he was in a romantic relationship with, and who had voluntarily come to his house to stay with him.

Amicus Curiae for the victim, who was 17 years old, supported these contentions and prayed for the victim to be saved from destitution by acquitting her husband.

In looking at the genesis of the POCSO Act, then Bench noted that while there was an exception for consensual sexual activity between adolescents above 16 years of age in the original draft of the Bill, the final version was passed without any regard for adolescent sexuality.

In recording findings of various empirical studies on adolescents engaging in consensual sexual activity, the Bench noted that non-exploitative sexual relationship without any intent is in rise among adolescents in our country.

Following the legislative progression in ages of consent since the 19^th century, it was observed that the same have evolved based on the changing understanding of childhood, adolescence and adulthood along with discourse on women's and children's rights.

Court noted that in 1860, the IPC had stipulated the age of consent to be 10 years, which was raised to 12 years following the death of a minor whose husband had attempted to consummate their marriage.

Age of consent was further raised to 14 years in 1925, and 16 years in 1949, which is how it remained for the next 63 years, till the POCSO Act of 2012 raised the same to 18 years.

The lack of recognition of consensual sexual behaviour of older adolescents has resulted in their automatic criminalisation, as well as a conflation of consensual acts with non-consensual acts. While all children and adolescents are entitled to protection from sexual exploitation and violence, the approach adopted under the POCSO Act renders adolescents vulnerable to criminal prosecutions for normative sexual behaviour, it was held.

Balance between protection and evolving autonomy is central to ensure best interests of adolescents, through “rights-based approach”

The Bench observed that, while the purpose of the POCSO Act was to protect minors under 18 years of age from sexual exploitation, it was having the unintended effect of deprivation of liberty to young people in consensual relationships.

It was noted that due to changing times, the individual autonomy of adolescents was evolving, as had been suggested by many sociological studies.

Bench observed: We may only say that may be for the reason of climatic change, sexuality develop in them very early may be owing to peer pressure, influence by social media, free availability of porn materials and free mixing with friends of opposite sex in a taboo free atmosphere. Instead of protecting adolescents from abuse, the law exposes those in factually consensual and non-exploitative relationship to the risk of a criminal prosecution and compromises the child protection mandate.

It was further noted that the law also undermines the identity of adolescent girls by unidimensionally casting them as victims, rendering them voiceless, and without any agency to enter into relationships or choose their partners.

Bench noted that a legal amendment was necessary to decriminalise sexual acts between those above 16 years, while ensuring that all children below 18 years remain protected under the POCSO Act, as well as that all children and adolescents be provided comprehensive sexual education, and access to sexual and reproductive health facilities, which may be integrated in the school curriculum.

The Bench concluded by calling for a rights-based approach for adolescents between the ages of 16-18 and in a romantic relationship.

It was noted that while such rights may be recognised, every right comes with a corresponding duty, and that it would remain the duty of a male adolescent to respect the duties of a young girl or woman, and the duty of parents and care-givers to ensure that no kid grows up believing that it is OK to violate women.

Citation: 2023 LiveLaw (Cal) 322 

Case: Probhat Purkait @ Provat Vs. The State of West Bengal

Case No: CRA (DB) 14 of 2023

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