Protection against misuse: on POCSO Act, adolescent sex

The key objective of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is the protection of children, but over the past few years, courts around the country and rights activists have called for some exemptions. Noticing a trend that adolescents, above 15 years but under 18, in voluntary relationships and having consensual sex were often being persecuted, the courts sought a review. In that backdrop, senior advocate Indira Jaising’s written submission to the Supreme Court that consensual sex between teenagers aged 16-18 years must not be criminalised is a welcome move. She was appointed amicus curiae and her submissions are part of a petition filed by advocate Nipun Saxena. Her brief challenged the designation of 18 years as the age of consent. She said the only solution lies in declaring that sex between consenting adolescents between the age of 16, an almost universal age of sexual maturity, and 18, is not a form of ‘abuse’. Ms. Jaising called for this exception to be read into the POCSO Act and Section 63 (sexual offences), of the Bharatiya Nyaya Sanhita (BNS). “Such an exception would preserve the protective intent of the statute while preventing its misuse against adolescent relationships that are not exploitative in nature,” she said.

In a 2023 report, the Law Commission had said that it was against changing the age of consent. It advised “guided judicial discretion” instead, while sentencing in cases that involve children between 16 and 18 years in a voluntary, consensual relationship. Under the POCSO Act and under several provisions of the Indian Penal Code and the BNS, whoever commits a penetrative sexual assault on a child — who is anyone below 18 years — can face stringent punishment under Section 6 of the POCSO Act, Section 9 of the Prohibition of Child Marriage Act, 2006, and provisions of the IPC and BNS. A 16-year-old is considered a “child” under Section 2(d) of the POCSO Act and hence her consent does not matter. But caveats have to be put in place so that the broad intent of the law is adhered to, as the Madras High Court suggested in 2021, in Vijayalakshmi vs State Rep. The High Court said the age difference in consensual relationships should not be more than five years to ensure that a girl of an impressionable age is not taken advantage of by an older person. Educating adolescents about the law on sexual offences and its consequences is a must too. Criminalising normal adolescent behaviour is not the way to protect against non-consensual, exploitative sexual offences.