Growing concern to relook at age of consent under Pocso Act

CJI D Y Chandrachud said there is growing concern about cases where provisions of the Act are slapped in cases of adolescent love affairs

Ten years after the Protection of Children from Sexual Offences (Pocso) Act 2012 was passed, there is an intent among the judiciary and activists to take a relook at the age of consent prescribed under the Act.

On Saturday, Chief Justice of India D Y Chandrachud speaking at the annual stakeholders consultation on the Pocso Act, alongside Union Minister for Women and Child Development Smriti Irani said that there is growing concern about cases where provisions of the Act are slapped in cases of adolescent love affairs.

Chandrachud said that the Pocso Act criminalises all sexual activity for those under the age of 18, regardless of whether consent is factually present between the two minors in a particular case or not. “Because the presumption of the law is that there is no consent in the legal sense below the age of 18,” the CJI said.

He went on to add that in his time as a judge, he has observed that this category of cases “poses difficult questions for judges” across the spectrum.

In June this year, Bengaluru-based NGO Enfold Proactive Health Trust conducted a study on the matter with UNICEF India and UNFPA, analysing 1,715 such “romantic cases” registered under the Pocso Act in Assam, Maharashtra, and West Bengal between 2016-2020.

The study revealed that “romantic cases” accounted for 24.3 per cent of all Pocso cases between 2016 and 2020, and that 80.2 per cent of these cases were filed by parents and relatives of the girls. In over 87.9 per cent of these cases, the girls admitted to having a romantic or consensual relationship with the accused.

Last week, the Joint Committee of the Juvenile Justice Committee of Tamil Nadu and the state police department in a study revealed that 60 per cent of all Pocso cases registered in the state pertains to love affairs.

The study further revealed that the Act was clamping down on tribal communities where marrying below the age of 18 is not taboo.

NCRB data says that in 2021, 53,873 cases were filed under the Act, and these cases formed 36 per cent of all crimes against children. In 61 per cent of these cases, rape was committed.

Officials and activists say that slapping Pocso cases on cases of adolescent love affairs is clogging the system, which already has too many pending cases to deal with. And additionally, by doing so, the system is also sending young adults to jail, especially in cases where sometimes there is a child on the way.

“During her address, WCD minister Smriti Irani, said that it takes over 509 days on an average to dispose of a POCSO case. Irani was citing a World Bank report which evaluated 2 lakh cases in 28 states and Union Territories. “If we look at the national capital, in 2020, the highest average case length was 1284 days,” Irani said, additionally urging a robust intervention and the need for the executive to partner with the judiciary to expedite solutions.