Major questions about minors

Source: The post is based on the article “Major questions about minors” published in The Indian Express on 24th December 2022. 

Syllabus: GS2 –  Laws and mechanisms for vulnerable sections of the population.  

Relevance: Issue related to the adolescent population 

News: The article explains the issue of criminalisation of consensual sexual activity between adolescents by misusing the provisions of POCSO Act. 

What is the POCSO Act?

What are the issues with the POCSO Act? 

POCSO blends exploitative sexual practice and general sexual expression by an adolescent. This has become an instrument to silence or regulates a non-exploitative consensual sexual relationship involving a minor girl, which is voluntary.  

It causes the victimisation of the“consenting girl”. POCSO, MTP and the Child Marriage Act create a complex socio-legal web that deprives the minor girl of the rights to dignity, liberty, and sexual and reproductive health, and undermines her privacy.  

It leads to poor sexual awareness among young girls. 

The law disregards the likelihood of a minor girl engaging in sexual activity voluntarily. It ignores social reality. According to the NFHS-5, for instance, 39% women had their first sexual experience before turning 18.  

As per NCRB data, the number of juveniles apprehended under the POCSO Act in the country has seen a staggering jump of 180% between 2017- 2021. Criminalising underage sexuality burdens the already-overburdened courts. 

What has been the approach of higher courts in this matter? 

The Madras, Delhi and Meghalaya High Courts have raised concerns over the criminalisation of romantic relationships between or with an adolescent under POCSO. 

The Madras High Court in Vijayalakshmi v State (2021) made it imperative to draw a line demarcating the nature of acts that should not be made to fall within the scope of this stringent law. 

In Dharmendra Singh v State Govt of NCT (2020), the Delhi High Court has attempted to increase the chances of bail of an accused, in case there is tacit approval by the girl and the age difference between the victim and the offender are less.  

Prima facie the judiciary seems to have a sympathetic approach in cases where the outcome of the love affair is marriage. However, courts are reluctant to grant bail in matters of a love affair with a minor girl gone bad. 

What is the way forward? 

There is a need to evolve a separate procedure for children while dealing with POCSO cases. The relief accorded by a few high courts to adolescent youth is disproportionate to the harm and harassment caused for fault of falling in love with a girl.