Supreme Court questions POCSO Act criminalising teen sex; says 15-18 is age of experimentation

The Supreme Court on Monday questioned the use of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) in cases involving teenagers in sexual relationships.

A Bench of Justice BV Nagarathna and Justice R Mahadevan said parents often resort to criminal proceedings to protect their so-called "honour" when teenage girls run away with their partners.

"How does the State prevent the elopement of a girl and a boy? POCSO is sexual assault and exploitation of children. 15-18 is a vulnerable age. Age of experimentation. Question is, does it really become a POCSO case?" the Court asked.

The Court was hearing a suo motu case concerning the right to privacy of adolescents. The case had been initiated in the wake of a Calcutta High Court ruling that called for adolescent girls to "control" their sexual urges instead of getting entangled in relationships and "giving in to two minutes of pleasure."

The High Court judgment was later set aside by the top court.

Today, Senior Advocate Madhavi Divan informed the Court about the current status of the case that sparked the Calcutta High Court's controversial judgment.

"This was regarding the elopement of a minor with a 25 year old man. The individual matter was sorted out. Broadly there was closure. There was a committee appointed by the court. There were social workers who interacted with the lady. A strong report was filed regarding the failure of the system in POCSO matters," the senior counsel said.

Divan added that minors are entitled to certain rehabilitation measures under the POCSO Act.

The Court enquired whether it was a case of elopement or kidnapping. Diwan said the victim wanted to be with the man and had a child with him.

The Court then made a general observation about the misuse of POCSO Act.

"16-18 they develop a relationship and go away. Parents to protect their honour fasten criminal liability. We have to acquit," it noted.

Divan submitted that a system to prevent such issues was needed.

"The girl has already settled with her husband and she is happy. The wider issue is adopting measures for adolescent well-being and child protection," she said.

Divan referred to cases where 17-18 year-olds are sent to jail.

"There needs to be sensitisation at a younger level. Union has put in comprehensive suggestions. It needs to be put to its logical conclusion," she said.

The Court said such relationships involving teenagers were taking place before the age of consent was increased from 16 to 18 in 2012.

"It’s not just after 2012 it is happening. It has been happening; child marriages were there earlier also. When the age became 18, it became illegal," the Bench said.

The Court added that its directions in such cases must remain practical.

The Union government's counsel said that if its recommendations are accepted, they can be implemented on ground across States and Union Territories.

"One is qua adolescent education, POCSO awareness to be introduced in a graded approach from class 6 onwards etc," the counsel said.

Divan added that there should be a dashboard for monitoring of cases under the POCSO Act.

The Court remarked that each High Court already has a committee for child rights and such monitoring can be done by State governments as well. It did not agree with a submission seeking monitoring by the Union government.

"It is already being monitored by the High Courts etc. why do you want the Union to do it?" the Bench said.

The matter will be heard next on July 17, Friday.

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