Examining the POCSO Act’s Age of Consent

The Chief Justice of India recently expressed concern about the POCSO Act’s age of consent. The CJI asked parliament to reconsider the age under the POCSO act.

What are the issues concerning the age of consent?

  • Criminalization of romantic relationships: Under POCSO, the Madras, Delhi, and Meghalaya High Courts have flagged cases involving the criminalization of romantic relationships between or with adolescents.
  • AK v. State Govt of NCT of Delhi: In AK v. State Govt of NCT of Delhi (order by Justice Jasmeet Singh), the Delhi High Court stated on November 12 that the purpose of POCSO was to protect children under the age of 18 from sexual exploitation, not to criminalize romantic relationships between consenting young adults.
  • The government has stated that it has no plans to change the consent age.
  • Blanket ban on anticipatory bail: A recent criminal law amendment in Uttar Pradesh imposed a blanket ban on granting anticipatory bail to rape suspects, further injuring the already injured.

Problems related to age of consent and POCSO Act

  • Criminalization of sexual act: POCSO criminalizes both exploitative sexual practice and general sexual expression by an adolescent.
  • Overlooking the voluntary sexual act: Criminal law has been used to silence or regulates a non-exploitative consensual sexual relationship between a minor girl.
  • Abuse of the POCSO act: The court’s obiter that POCSO has become a tool in the hands of certain sections of society to abuse the legal process is supported by other courts as well.
  • Victimization of girls: Legislators should pay attention to the cumulative victimization of the “consenting” girl.

Today’s reality of adolescent sexual life and legal mismatch

  • Increased consent age: The consent age was raised from 10 to 12 to 14 to 16 to 18 years by the 2013 amendment, in order to comply with the then-newly legislated POCSO Act.
  • Minor girl consent is illegal: Because the law disregards the likelihood of a minor girl engaging in sexual activity voluntarily, she is desexualized.
  • Ignoring social reality: The law that criminalizes adolescent sexuality either ignores or pretends to ignore social reality.
  • Sexual experience before the age of consent: According to the NFHS-5, 39% of women had their first sexual experience before the age of 18. The same survey provides additional evidence of sexual engagement among unmarried adolescent girls by reporting contraception use by 45% of unmarried girls aged 15 to 19.

Way forward

  • Separate procedure for POCSO Act: When dealing with POCSO cases, it is necessary to develop a separate procedure for children.
  • It is best to avoid victimization: Romantic” lovers in a mutually consenting relationship should not be victims of criminal justice system abuse.

@the end

The age of consent is a contentious issue that cannot be decided solely by judges and the judiciary. Sexual education for children and adolescents is urgently needed. We must fight the taboo against sex and engage in sex debate.

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