POCSO Act issues and challenges: How courts responded in 2022

The law increasingly came under the scanner especially due to the fact consensual sexual acts between minors are hit by the law leading to incarceration of boys, many of whom are married to the victim.

The Protection of Children from Sexual Offences Act (POCSO Act) was enacted in 2012 to strengthen the legal framework dealing with sexual offences against children.

The Act was amended in 2019 whereby more stringent punishments were introduced including death penalty for committing sexual crimes on children, with a view to deter the perpetrators and to prevent such crimes. 

However, in the recent past, the law has increasingly come under the scanner especially due to the fact that consensual sexual acts between minors are hit by the law leading to incarceration of boys, many of whom are married to the victim.

Besides, the procedure under the Act has led to what experts term re-traumatisation of child victims.

Minister of Women and Child Development of India Smriti Irani recently stressed on the need to prevent the re-traumatisation of child sexual abuse survivors during the justice delivery process.

Chief Justice of India (CJI) DY Chandrachud too cautioned against entrusting excessive powers to the police in cases under the POCSO Act as it could lead to re-victimization of child victims.

These indicate that both the executive and the judiciary aim to create and improve the system wherein trial in child sexual abuse cases are victim- friendly.

The year 2022 saw the courts and parliament engaging with the law and its various aspects.

Below are some such instances

Lowering age of consent

The age of consent under POCSO Act has been one of the mostly hotly debated topics.

The Act clearly defines a child as any person below the age of 18 years and the law criminalizes all sexual acts among those under 18 regardless of whether it is consensual.

The age of consent has been perceived by many as too high and various High Courts and Supreme Court judges have called for a rethink on the age of consent when it comes to consensual sexual acts.

The Madras High Court recently said that it is "eagerly waiting" for the legislature to reduce the age of consent under the POCSO Act from the current 18 years but until that is done, it cannot interpret the age of consent in any other way.

The Karnataka High Court also recently noted that a lot of cases were being filed under the POCSO Act where young couples were marrying and having sexual intercourse. It, therefore, asked the Law Commission to rethink its age criteria, keeping in mind the ground realities.

Retired Supreme Court judge Justice Indira Banerjee in November 2022 called for a relook at the provisions of the POCSO Act dealing with compulsory reporting of offences and the age of consent.

She said that the POCSO law at present does not address consensual relationships where the girl might just be under the age of 18 and the complainant is usually a family member of the girl who is opposed to the relationship between the boy and the girl.

"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."

CJI DY Chandrachud also recently noted that the age of consent under POCSO Act, which is at 18 years, poses difficult questions for judges dealing with such cases, and that the growing concern surrounding this issue needs to be considered by the legislature.

Speaking on the issue, CJI Chandrachud had said,

"You are aware that the POCSO Act criminalizes all sexual acts among those under 18 regardless of whether consent is present factually among the minors, because the presumption of the law is that there is no consent among those below 18. In my time as a judge, I have seen that this category of cases poses difficult questions for judges across the spectrum. There is a growing concern surrounding the issue which must be considered by the legislature in view of reliable research by experts in adolescent healthcare. I should leave this topic right here, as this topic is very vexed as we see in courts everyday."

However, the government in the winter session of the parliament made it clear that there is no question of reducing the age of consent under the POCSO.

Whether courts will increasingly step in and come to the aid of the accused persons in consensual cases by reading down the law, remains to be seen.

Marriage of Muslim minor girl and POCSO

Another issue which has come to light is the discrepancy between POCSO Act and Muslim personal law.

Muslim marriages are governed by personal law and a Muslim girl who has attained the age of 15 is considered competent to enter into a marriage as per Islamic law.

The question that came to fore in many cases is whether sex with minor Muslim wife would be exempt from POCSO Act.

There were conflicting decisions rendered by various High Courts on this issue.

The Kerala High Court recently held that marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act and a husband who has sex with his minor Muslim wife would be liable under the POCSO Act.

The Karnataka High Court gave two conflicting decisions in October.

In one case, it held that POCSO Act overrides Muslim personal law with respect to the age of consent for sex and hence, sex after marriage with minor Muslim girl would not be exempted from POCSO.

However, in another case, it quashed a rape case and case under the POCSO Act against a man who was booked for having sex with his minor Muslim wife and impregnating her.

The Delhi High Court also held that according to Muslim law, a minor girl who has attained puberty (which is presumed to be 15 years) can marry without the consent of her parents and has the right to reside with her husband. In such cases, when physical intercourse happens only after the wedlock, offences under the POCSO Act will not be attracted, it held.

similar judgment was delivered by the Punjab High Court which has been challenged before the Supreme Court by the National Commission for the Protection of Child Rights (NCPCR).

In its appeal, the NCPCR stated that the the ruling was in contravention of the Prohibition of Child Marriage Act and the POCSO Act as it effectively allowed child marriage and sexual intercourse with children.

The Supreme Court in October, while hearing the appeal, agreed to examine the question of whether a Muslim girl who has attained the age of 15 years is competent to enter into a contract of marriage with a person of her choice.

Reporting child sexual abuse and the way forward

The judicial response to various aspects related to POCSO in 2022 has been encouraging albeit conflicting.

Despite these, many other issues continue to linger.

CJI DY Chandrachud, while delivering a keynote address at a two-day national consultation on the POCSO Act organized by the Supreme Court Committee on Juvenile Justice in association with UNICEF, said that families should be encouraged to report instances of child sexual abuse even when the perpetrator is a family member.

He said that there exists a culture of silence which comes from shame and conceptions of family honour and this deters families from reporting cases of child sexual abuse.

However, it must be ensured that the so-called honour of the family is not prioritized over the best interest of the child, and the State must encourage families to report cases of abuse even where the perpetrator is a family member, he said.

Supreme Court judge, Justice BV Nagarathna touched upon another important aspect - pendency as far as POCSO cases are concerned.

She said that setting up more fast track courts to try POCSO cases is futile unless it is complemented by appointments of more judges, and training and sensitization of judges, public prosecutors and police personnel.

The Supreme Court judge was referring to the Central government's proposal to set up nearly 400 new fast track POCSO Courts to tackle the pendency of nearly 2.26 lakh cases throughout the country.

As per data released in a year end press release by Department of Justice, Ministry of Law, 733 fast track courts with 413 exclusive POCSO Courts have been operationalized in 28 States/UTs which have disposed of more than 1,24,000 cases.

Another Supreme Court judge Justice S Ravindra Bhat lamented the fact that the POCSO Act was currently being understood in a rather unidimensional manner.

He said that under the Act, the focus now is more on effective prosecution and conviction of the perpetrator. He, however, suggested that the victim-child's rehabilitation should be given equal priority.

"Unfortunately, the POCSO Act is understood rather unidimensionally. The abhorrent nature of the crime, where the young children are victims, securing punishment corners much of our attention. For the very same reason, the focus on restorative justice in the form of the child's rehabilitation and healing is equally important. Balancing these while focusing on a child-centric and rights-based approach, which are the pillars of our juvenile justice system, necessitate a review of how different stakeholders [are] adapting to the special rigors and facilitating the wide protections that this legislation affords children."

In 2022, a child-friendly Special Court for trying cases under the POCSO Act in Kerala, which was inaugurated in the Ernakulam District Court complex, a step in the right direction in keeping with the spirit of the Act.

2023 would hopefully see more such positive reforms and steps to augment the purpose of the law.

Bar and Bench - Indian Legal news