Can High Court Quash POCSO Conviction Based On 'Consent' When Act Prescribes Minimum Sentence? Supreme Court Asks

The Supreme Court on Friday (February 23) questioned the remit of the high court to set aside a conviction under the Protection of Children from Sexual Offences (POCSO) Act, merely on the basis that the sexual intercourse was with 'consent', when a minimum punishment has been prescribed under the statute, in the absence of a constitutional mandate to do 'complete justice' that is enjoyed by the top court. 

This issue was flagged by a bench of Justices Abhay S Oka and Ujjal Bhuyan hearing a suo motu writ petition and an appeal against a Calcutta High Court judgment which made news in December last year for cautioning girls in their adolescence to 'control their sexual urges' to prevent being deemed a 'loser' in the eyes of society “when she gives in to enjoy the sexual pleasure of hardly two minutes”. While deciding an appeal in a sexual assault case involving young adults, the high court had issued a set of advisories to teenagers, which included these observations. The remarks triggered an outrage and led to the Supreme Court taking suo motu cognisance in a case titled 'In Re: Right to Privacy of Adolescent' on the directions of the Chief Justice of India. Later, a special leave petition was filed by the State of West Bengal challenging the verdict on its merits.

In December last year, while issuing notice to the state government, the accused, and the victim, the top court observed that these remarks were 'highly objectionable' and 'completely unwarranted', besides being in violation of the rights of adolescents under Article 21 of the Constitution.

"In an appeal against conviction, the high court was called upon to decide only the merits of the appeal and nothing else. Prima facie, we are of the view that, in such a case, the judges are not expected to either express their personal views or preach," the bench noted in its order.

Asking the state whether it intended to file an appeal against the judgment, Justice Oka also orally remarked that even the merits of the reversal of the conviction seemed doubtful, although the issue was not within the scope of the suo motu case. Subsequently, the State of West Bengal challenged the controversial verdict in a special leave petition, questioning the merits of overturning the conviction under the POCSO Act. Directing West Bengal's plea and the suo motu petition to be heard together, the bench said that not only were the observations in the high court judgment 'problematic' but also the legal principles invoked in it.

The Calcutta High Court, in the impugned judgment, exercised its powers under Section 482 of the Code of Criminal Procedure after noting that 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". The High Court took into account the fact that the victim married the convict and that a child was born in the relationship.

This is not the first time a high court has taken a liberal view with respect to the age of consent.

In 2021, the Madras High Court quashed the criminal proceeding initiated against an accused under the POCSO Act on the grounds of an amicable compromise of the disputes between both parties. "Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act," the high court observed.

Last year, in February, the Meghalaya High Court quashed criminal proceedings under the POCSO Act on the ground that the victim was in an intimate and consensual relationship with the accused and both have agreed to stay together as husband and wife. In March, the Bombay High Court followed suit, quashing a first information report (FIR) registered against a 19-year-old boy under the Indian Penal Code and the POCSO Act for the alleged abduction and sexual assault of a minor teenager. Later in the year, a single-judge bench of the high court expressed concerns about the increase in criminal cases involving minors in consensual sexual relationships, calling for a shift from a punitive approach towards adolescents' sexuality to one that enables access to sexual and reproductive health services. Similarly, the Madhya Pradesh High Court also quashed a rape case against a POCSO accused, noting that the complainant - a girl on the cusp of legal adulthood - was capable of making conscious decisions regarding her well-being. In August, the Delhi High Court quashed a POCSO case noting that the victim was 'happily married' with the accused and the former's father had lodged an FIR against the latter in a bout of anger.

Some other high courts have taken a strict view that the consent of a minor is irrelevant under the statutory scheme and imposed the minimum mandatory sentences on the accused.

However, the Law Commission in its two hundred and eighty-third report on the 'Age of Consent under the Protection of Children from Sexual Offences Act, 2012' noted that blanket criminalisation of sexual activity among teenagers under the POCSO Act was a cause of concern. While cautioning against a reduction in the age of consent to 16 years or carving out any exception for older adolescents - which, according to this report, could lead to an increase in child marriages - the commission suggested granting judicial discretion to court to impose less than the minimum sentence where the victim is above the age of 16 and the age difference between the persons is not more than three years.

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