'How Can POCSO Act Offence Be Termed Romantic?' : Supreme Court Slams HC Suggestion To Decriminalise 'Consensual' Sex Involving Older Teens

The Supreme Court on Tuesday (August 20) criticized the Calcutta High Court for observing in a judgment that the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) must be amended to decriminalise consensual sexual acts involving adolescents above sixteen years.The Supreme Court further expressed disapproval of the High Court's suggestion that an exception must be carved out for "non-exploitative" sexual acts among older adolescents.The High Court made these comments while quashing the conviction of a man (aged 25 years old at the time of the offence) for rape of a minor girl aged 14-year-old based on the premise that the relationship was "non-exploitative"A bench of Justice Abhay Oka and Justice Ujjal Bhuyan reinstated the conviction of the man under section 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).How can POCSO offence be termed "romantic"?The Court expressed surprise at the High Court terming the horrific sexual offence committed against the minor girl "non-exploitative" and "romantic relationship"."The duty of the High Court was to ascertain on the evidence whether the offences under Section 6 of the POCSO Act and Section 376 of the IPC were made out. In view of “sixthly” in Section 375 of the IPC, penetrative intercourse with a woman under eighteen years of age, with or without her consent, constitutes an offence of rape. Therefore, whether such offence arises from a romantic relationship is irrelevant. How can an act that is an offence punishable under the POSCO Act be described as “a romantic relationship”?The Court also criticised the High Court's observation that "non-exploitative and consensual" acts among adolescents should be exempted from the POCSO Act.Expressing shock at the High Court's comments, the Supreme Court said :"The High Court concluded that 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. The High Court was not called upon to discuss the merits and demerits of the existing laws. What is shocking is the observation made in paragraph 23 of the impugned judgment where the High Court observed that while achieving ostensible objectives 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 relationship."Courts have to implement the law, not do violence against the lawThe Supreme Court also disapproved of the High Court's suggestion that the POCSO Act must be amended to decriminalise consensual sexual acts involving adolescents above sixteen years."The High Court, while dealing with an appeal against the order of conviction, was not called upon to make the observations which we have referred to above. Perhaps these were the subjects on which only the experts could have debated at a different forum. The judges ought to have avoided expressing their personal views even assuming that there was some justification for holding the views. While the High Court observed this, it forgot that in the facts of the case, the Court was not dealing with the sexual acts involving adolescents above sixteen years, as the age of the victim was fourteen years and the accused was twenty-five years at the relevant time."Setting aside the High Court's observations, the judgment authored by Justice Oka stated :"The High Court went to the extent of observing that the case of criminalisation of a romantic relationship between two adolescents of opposite sex should be best left to the wisdom of the judiciary. The Courts must follow and implement the law. The courts cannot commit violence against the law. The findings and observations in the impugned judgment, except the finding on the applicability of Sections 363 and 366 of the IPC, cannot be sustained."Conviction could not have been quashed even if there had been settlementThe Court in an appeal filed by the State of West Bengal set aside the High Court's decision to overturn the man's conviction. The High Court had cited the victim's ongoing cohabitation with the accused and the lack of support from her parents as reasons for invoking section 482 of CrPC to set aside the conviction.Disapproving the High Court's approach, the Supreme Court said : "Therefore, in view of the settled position of law, in the facts of the case, even if the accused and the victim (who has now attained majority) were to come out with a settlement, the High Court could not have quashed the prosecution."“As noted earlier, in the facts of the case, the accused was not an adolescent, but his age was about twenty-five years on the date of the commission of the offence, and the victim was only fourteen years old. When such offences of rape and aggravated penetrative sexual assault are committed, by exercising its jurisdiction under Article 226 of the Constitution of India...

'How Can POCSO Act Offence Be Termed Romantic?' : Supreme Court Slams HC Suggestion To Decriminalise 'Consensual' Sex Involving Older Teens

Amisha Shrivastava

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