Heed CJI on POCSO provisions

The Chief Justice of India (CJI) D Y Chandrachud has raised a very valid and relevant issue about the enforcement of the POCSO Act. Speaking at a national consultation on the law, he called upon lawmakers to address the “growing concern” over the criminalisation of adolescent consensual sexual activity. The Act fixes the minimum age of consent at 18. Judges have to deal with a large number of cases which pose difficulties as the presumption of the law is that there is no consent in the legal sense below 18. The CJI said, “In my time as a judge, I have observed that this category of cases poses difficult questions for judges across the spectrum,” and wanted the matter to be considered by the legislature in the light of reliable research in adolescent healthcare. Other relevant factors, such as changing social mores, should also be taken into consideration.

Over 250 million people in the country are in the adolescent age group. With changes in social attitudes, the spread of education, and the explosion of the internet and social networking sites, ideas of man-woman relationships and love and sex have changed. Practices have followed the ideas. There are large numbers of young persons who enter into such relationships consensually. According to the National Family Health Survey-5, 2019-21, 39 per cent of women had their first sexual intercourse before the age of 18 years. After the age of consent was increased from16 to 18 years, many such relationships have ended up in courts. Since the law is very strict, the judges do not have much discretion in such cases. Studies have shown that at least one in four cases involves romantic relationships and it is disapproving parents or others who are pushing the cases. The Madras High Court said last year that, “It does not help matters to avoid acknowledging that society is changing and influencing people’s identity and cognition constantly.”

This underlines the need for a more considered and realistic view of sexuality among youngsters and the law that deals with it. There is the prudish and orthodox view that children and young persons should not be allowed to stray from the conventional path of relationships. Such a view would not even accept the need for sex education. The issue here is that there are many adolescents who have to pay a heavy price for mutually agreed relationships. The chronic delays in courts make the issue more difficult. It is nobody’s case that children and young persons do not need protection from sexual offences and from harassment. But parliament can examine the issue, taking the suggestion from the CJI, and go in for a fair review of the present law.