POCSO Act: Calcutta High Court calls for decriminalising consensual sexual acts involving adolescents above 16 years

The Calcutta High Court on Wednesday voiced concerns over the Protection of Children from Sexual Offences Act (POCSO Act) 'unjustly' conflating consensual acts among adolescents with sexual abuse [Probhat Purkait @ Provat vs State of West Bengal]..A division bench of Justices Chitta Ranjan Dash and Partha Sarathi Sen said there is a need to strike a balance between 'protection' to children and 'criminalising' adolescents and hence called for decriminalising consensual sexual acts involving adolescents above 16 years.While the objective of the POCSO Act 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 bench opined."A legal amendment is, therefore necessary to decriminalise consensual sexual acts involving adolescents above 16 years, while also ensuring that all children below 18 years are protected from sexual offences under the POCSO Act," the Court said.The POCSO Act fails to strike an effective balance between protecting adolescents against sexual abuse and recognising their normative sexual behaviour, the Court stated."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," the bench observed in its order.The result is that a law aimed at addressing child sexual abuse is instead being used against adolescents especially to curtail the sexual expressions of adolescent girls to safeguard family honour, the Court said.The Court also called for introduction of comprehensive sexual education."All children and adolescents need to be provided rights based comprehensive sexual education. Legal and policy reforms are also needed to ensure confidential and barrier free access of adolescents to sexual and reproductive health services. Comprehensive sexuality and life skill education should also to be integrated in the school curriculum," the bench said.This, the bench added, should be an essential step towards safeguarding the rights and interest of adolescents and ensuring that their health, dignity and overall developmental potential are advanced. .The observations were made while hearing an appeal filed by a young man who was convicted under the POCSO Act for raping a minor girl who gave birth to a child at the age of 17 years. As per the facts of the case, the girl had an affair with the appellant which started when she was 14 years old. However, after her parents learnt that she is pregnant, they filed a criminal case against the appellant. .In its detailed judgment, the bench noted that the 'principal androgenic steroid' is testosterone which is secreted primarily from the testes in men and ovaries in women and in small amounts from the adrenal glands, both in men and women. But activation of the respective responsible gland is not automatic as it needs stimulation by our sights, hearing, reading erotic materials and conversation with opposite sex. So sexual urge is created by our own action, the bench said."Sex in adolescents is normal but sexual urge or arousal of such urge is dependent on some action by the individual, may be a man or woman. Therefore, sexual urge is not at all normal and normative. If we stop some action(s), arousal of sexual urge, as advocated in our discussion supra, ceases to be normal," the bench underscored.The bench, therefore, proposed a 'duty/obligation based approach' to the issue, and suggested:It is the duty/obligation of every female adolescent to:(i) Protect her right to integrity of her body. (ii) Protect her dignity and self-worth. (iii) Thrive for overall development of her self transcending gender barriers.(iv) Control sexual urge/urges as in the eyes of the society she is the looser when she gives in to enjoy the sexual pleasure of hardly two minutes. (v) Protect her right to autonomy of her body and her privacy. "It is the duty of a male adolescent to respect the aforesaid duties of a young girl or woman and he should train his mind to respect a woman, her self worth, her dignity and privacy and right to autonomy of her body," the bench added.For this purpose, the bench said charity should begin at home and the parents should be the first teachers. "We therefore feel that parental guidance and education to children specially the girls to recognise bad touch, bad signs, bad advances and bad company is necessary specially with emphasis on their health and reproductive system to have sex at an age not sanctioned by law," the bench observed.Similarly, parental guidance and education so far as boys are concerned is to include how to respect a woman, how to keep dignity of a woman, how to protect the integrity of body of a woman and how to befriend a woman without being aroused by sexual urge even if there is advances from the other side till he becomes capable to maintain a family, the bench added."The family where a child is there should maintain such a conducive atmosphere in the house that no kid grows up believing that it is 'OK' to violate women. We should never ever think that only a girl is subject to abuse, because there is no escape for a boy even now-adays," the bench underlined. Besides the parental guidance, requisite sex education with emphasis on these aspects and reproductive health and hygiene should be a part of the curriculum of every school. .The bench further said it does not want adolescents to do anything that shall push them from dark to darker side of life. "It is normal for each adolescent to seek the company of opposite sex but it is not normal for them to engage in sex devoid of any commitment and dedication. We want them to spread their wings high with a view to realise their best selves. Sex shall come automatically to them when they grow self-reliant, economically independent and a person which they dreamt one day to be," the bench emphasised.Along with sex in such a stage shall come love with commitment and dedication towards each other as they shall have the discretion and maturity to understand each other, adjust with each other and forgive each other, the bench opined.The Court also invoked Mahabharath to state:"We beseech our adolescents to follow a salutary legal principle 'Dharmo Rakshyati Rakshyita' (one who protects law is protected by law) and proceed in their path of self-development without being influenced by bashful urge of urgent sex.".The bench then proceeded to quash the conviction order passed against the appellant in September 2022..Advocates Malay Bhattacharyya, Subhrajyoti Ghosh and Dibakar Sardar appeared for the Appellant.Additional Public Prosecutor PK Datta, along with Advocates Ashok Das and SD Roy represented the State.Advocates Shibaji Kumar Das, Soumyajit Das Mahapatra, Rupsa Sreemani and Madhuraj Sinha represented the Victim..[Read Judgment]