[POCSO Act] Former SC judge Justice Indira Banerjee calls for amendments to age of consent, compulsory reporting provisions

Retired Supreme Court judge Justice Indira Banerjee on Thursday called for a relook at the provisions of the Protection of Children from Sexual Offences (POCSO) Act dealing with compulsory reporting of offences and the age of consent. .Justice Banerjee made the comments while delivering the keynote address at the launch of Vidhi Centre for Legal Policy's report titled 'A Decade of POCSO: Developments, Challenges and Insights from Judicial Data'. She said,"I personally feel the law needs to be amended...the Juvenile Justice Act makes an exception for a juvenile to be tried as an adult. There can be a similar exception in POCSO for girls over an age cutoff, maybe 16 years, if they have been in a consensual romantic relationship with the accused...Second is the provision for compulsory reporting....If the child does not want it to be reported, will it not clash with their right to privacy?".The comments come at a time when the Supreme Court observed that the failure to report cases of sexual offences against children is a serious crime and is often done to shield offenders..Justice Banerjee in her speech also flagged the issue of survivors in POCSO cases not being able to give their depositions properly on account of not wanting to recount the trauma they went through, which ultimately affects the outcome of the trial."If you keep asking them about their trauma, there will always be inconsistencies as they will falter. Even I would, [so] think of a small child asked a question over and over again. By the time a child has to give evidence all over again, she would be exhausted and as a result...the case would be affected."She also stressed that sexual abuse was a violent act that is a violation of human rights and can destroy one psychologically."We find from data that more and more children are being exploited sexually. But is that cases are rising or more are now aware and guardians are coming forward to complain? Sexual assault was brushed under the carpet [earlier] for social reasons. It is the victim who has to go through the stigma and criticism.".The former judge recalled the harrowing tale of a minor who was lured and trafficked to join a brothel, but later rescued by one of her clients. "...she held my hand and said 'I only wanted to earn a living for myself, what wrong had I done?' She was tricked and trafficked, this is so common in many parts of the country."She also said that the POCSO law at present does not address consensual relationships where the the girl might just be under the age of 18. "When cases like this come to the courts, we are in a dilemma, the law is clearly against them. A person below 18 cannot give consent. The complainant will be the family." Stating that too many acquittals in such cases would embolden the wrong elements, Justice Banerjee concluded by saying there needs to be more awareness programs at the school level. .The Vidhi report analyses nearly 400,000 cases from across 28 States and Union Territories, and includes interviews of stakeholders, to shed light on the trial court performance, pendency and disposal patterns seen in such cases. The keynote address was followed by a panel discussion moderated by the lead of Vidhi's Jaldi Initiative Deepika Kinhal. The panellists were retired Bombay High Court judge Justice Shalini S Phansalkar-Joshi, TISS professor Dr Asha Bajpai, child rights advocate Anant Kumar Asthana and public policy researcher Devendra Damle. .[Exclusive] Report on former CJI Gogoi should have been made public; would have cleared the air: Justice Indira Banerjee [Part II].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.