By Justice Kamaljit Singh Garewal
Moon River, wider than a mile
I am crossing you in style someday.
You dream maker, you heart breaker
where ever you are going I am going your way.
Two drifters, off to see the world,
there is such a lot of world to see.
—Theme song of the movie, Breakfast at Tiffany’s (1961)
In the song, the river is a metaphor for the lover. It is described as both a dream-maker and a heart-breaker in the same line, emphasising both the delightful and disastrous outcomes of romantic relationships. Even knowing that it could go badly, the lovers are determined to follow their heart.
Fast forward to modern day Gwalior. A young, starry-eyed 17-year-old girl had a brief relationship with Kailash Sharma, a 30-year-old man. But when he broke the promise to marry her, as he was already married, she reported to the police on December 28, 2022. This led to the registration of a case of statutory rape. Conviction and mandatory minimum ten years sentence were staring the accused person in his face.
Justice Deepak Kumar Agarwal of the Gwalior Bench of the Madhya Pradesh High Court came to Sharma’s rescue by taking a humanistic approach, and also saved the poor girl from life long psychological harm, quashed the FIR and all further proceedings on July 12, 2023. This was absolutely the right thing to do. And it was done so quickly that the accused did not have to face the ignominy of criminal proceedings for too long. The quashing jurisdiction of Section 482 CrPC was effectively used to deliver complete justice and give full closure to the sad event.
Justice Agarwal relied heavily upon observations of the Madras High Court in Vijayalakshmi’s case which are reproduced: “The provisions of the POCSO Act, as it stands today, will surely make the acts of the boy an offence due to its stringent nature. An adolescent boy caught in a situation like this will surely have no defence if the criminal case is taken to its logical end. Punishing adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act. An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. These incidents should never be perceived from an adult’s point of view and such an understanding will in fact lead to lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life.”
The second important judgment to come out this month was of a more difficult case. Justice Bharati Dangre of the Bombay High Court was dealing with an appeal filed by a man who had been tried for rape, found guilty by the trial court under the POCSO Act and sentenced to the minimum prescribed term of 10 years. In this case too, the girl was 17. Justice Dangre, in a detailed and well written opinion, considered all aspects of the case and found that the man deserved to be acquitted.
In the judgment, concerns were raised over criminalisation of romantic relationships between minors and urged for a progressive approach that would enable them access to sexual and reproductive health services instead.
Several countries have a low age of consent for adolescents to enter into a consensual sexual relationship. For instance, the age of consent in Japan is only 13, in Germany, Italy, Portugal, Hungary, it is 14, and in England & Wales, it is 16. It may be recalled that the age of consent in India was also 16 until it was raised to 18 in 2013.
The judge also felt it a matter of concern as there were a rising number of criminal cases under POCSO, where the accused are charged even when the victims, being adolescents, maintain they were in a consensual relationship. The judge pointed out that “sexual autonomy encompasses both the right to engage in wanted sexual activity and the right to be protected from unwanted sexual aggression. Only when both aspects of adolescent’s rights are recognised, human sexual dignity can be considered to be fully respected.”
The age of consent necessarily must be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage, the High Court said. The judicial system must take note of this important aspect.
The Delhi High Court has also remarked that the purpose of the POCSO Act was to safeguard children from sexual exploitation, not to criminalise consensual romantic relationships between young adults. This observation came during the Court’s decision to grant bail to a boy who had married a 17-year-old girl, despite having been arrested under the Act.
Our courts have been taking the correct view in cases of teenage romantic relationships, quite consistent with modern reality. The situation which prevailed till 2013 had the age of consent for consensual sex at 16 and not 18 years. It was the enactment of the Criminal Law (Amendment) Act, 2013 on February 3, 2013, that raised the age for consent by two years to 18.
This was roughly the time when the Protection of Children from Sexual Offences Act, 2012 or POCSO came into force. It was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process. But using the provisions of this Act to criminalise teenage romance leading to consensual physical relationship is clearly misreading and misapplying the law. Prosecutors should throw such cases out instead of supporting the charges and trying to establish guilt. If the girl denies the whole incident and resiles altogether, as if nothing happened, acquittal shall follow in spite of the stringent provisions of POCSO.
The 22nd Law Commission has, as reported in the press, initiated discussions on the age of consent, raising important questions about the conflict between the POCSO Act and the role of consent in adolescent relationships. In a meeting with officials from the Women and Child Development Ministry, the Law Commission sought details on this matter, highlighting the need for further examination. Recognising the evolving dynamics of relationships among adolescents, the Law Commission aims to provide comprehensive insights into the age of consent.
As an authoritative body that advises the government on intricate legal issues, the Law Commission plays a vital role in shaping policies and laws. The 22nd Law Commission is now focused on addressing the complexities surrounding the age of consent, aiming to strike a balance between protecting children and respecting the autonomy of young adults in romantic relationships.
There is finally hope that amendments shall be introduced to reduce the age of consent to 16, and close the many cases under POCSO where the girl is between 16 and 18 in a romantic relationship with a young man. Such romantic young men shall be saved from the rigours of an impractical law.
—The writer is former judge, Punjab and Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York