Why in the News?
Various
cases registered under the POCSO ACT, 2012
were quashed by High Courts (HCs) of Bombay, Madras &
Madhya Pradesh on the grounds of 'consensual sex' between the victim and the accused.
What are the concerns regarding the judgments of
HCs?
The Madras HC has quashed a case involving a 17-year-old girl citing consensual sex.
1. Creates a gap between the apex court and HCs
interpretations
●
Supreme
Court Judgment in Independent thought
vs. UOI case- even sexual intercourse with a minor wife is rape
2. This goes against the very basic definition of
'child' and 'age of consent' as18 years as mentioned in the POCSOact.
3. The purpose of Sec 375 of IPC (sexual
intercourse weather with or without her
consent is rape if she is under 18
years of age) gets defeated.
4. Goes against the best interests of the minor
girls - Even in cases of
·
Consensual sex, whether the girl really
understood the consequence of early pregnancies is questionable.
About:
Main features of POCSO Act, 2012
1.
Defines
Child as any person below the age of 18years.
2.
Child
friendly trial system.
3.
Death
penalty for rape of child less than 12
years of age.
4.
Special
courts to adjudicate cases of POCSO Act.
5.
No
time limit for reporting of cases by the victim.
6.
Protection
against sexual abuse, harassment, pornography and trafficking for children less than 18 years of age.
7.
Gender-neutral
legislation.
Issues associated with the POCSO act relating to
'consensus':
1.
Criminalizing
consensual relationship
a. Used as a tool by parents to curtain sexual
expression of girls and attempt to
safeguard family honour.
b. Victim girls become voiceless as it violates
their Right to life, privacy and dignity.
2.
Impeded
adolescents' Right to barrier-free access to sexual and reproductive Health Services.
3.
Mandatory
reporting to police under the POCSO act has pushed girls to unsafe abortions.
4.
Madras
High Court: Adolescent romance marks an important sign for adolescents' self-identity, functioning and capacity for
intimacy.
5.
Institutionalization
of adolescence especially girls - as the girl child refuses to go along with her parents for any reasons.
6.
Male
child victim cases go unreported (the National Crime Records Bureau shows only 0.8% cases registered related to
male child victims).
Other issues related to POCSO Act:
1.
The
statement of the girl child victim has to be recorded by women SI, but faults due to following reasons,
·
Poor
strength of women staff with only 10%
women workforce in the police
stations.
·
IUCAW
(Investigation Unit on Crime against Women) mandates one third of women officers in the total
workforce, but this remains largely unmet.
·
Mahila
desks for registering complaints related to women are also largely understaffed.
2.
Performance
of banned two finger tests
3.
No
punishment for those who retract their statement during the case proceedings.
4.
Issue
in age determination whether it has to be based on Date of Birth in school or date of birth in Hospital
·
This
dilemma is often used to fake minor as major for escaping provisions related to
consensus and damage to private parts.
5.
Pressure
on Investigating Officers (IO) to submit a charge sheet within 2months.
This pressures the IO for investigation completion and not quality.
6.
Delay
in judgment
·
Kathua
Rape case - Conviction of the accused took 16
months.
7.
Overlap
of 'Age' provision of POCSO Act and Juvenile Justice Act.
Way forward:
1.
Comprehensive
sexuality education to
a.
Enable
adolescents to make informed decisions.
b.
Impart
skills & attitudes to vulnerable groups.
2.
Amendment
to POCSO act and IPC provisions to decriminalize consensual acts of adolescents greater than 16 years of age.
·
Till that law enforcement agency, Child welfare
committees and Juvenile Justice boards should use their discretion to act in
the best interest of the child.
3.
The
Bureau of Police Research and Development should analyse cases of
·
Consensual sex to help the Central govt. to take
decisions regarding reduction of age of consent.
