Above: The High Court observed that teenagers in consensual relationships should be dealt with under liberal provisions of law (Representative Picture: UNI)
A Madras High Court judgment which said that consensual relationships between teenagers should not come under the POCSO Act has come in for criticism
By R Ramasubramanian in Chennai
In a recent judgment, the Madras High Court said that consensual relationships between teenagers aged between 16 and 18 years who are infatuated or innocent should not come within the purview of the Protection of Children from Sexual Offences (POCSO) Act, 2012, which awards not less than seven to 10 years of rigorous imprisonment for such acts. It further said that a child should be redefined as someone below 16 years of age instead of the current 18.
Justice V Parthiban made this recommendation while setting aside a conviction order and 10 years’ imprisonment awarded by a Mahila Court in Nammakkal district of Tamil Nadu in 2018 to a schoolboy. He had allegedly abducted a 17-year-old girl and had a sexual relationship with her in the guise of performing “marriage” in a temple.
Interestingly, during the course of the trial, the girl completely denied all charges levelled against him and claimed that he was only an acquaintance. There was no substantial evidence against him. “Yet, the Mahila Court erroneously convicted the accused boy merely on the basis of hearsay evidence of the concerned girl’s relatives and neighbours,” the judge ruled.
He called for a report from the Tamil Nadu Commission for Protection of Child Rights and learnt that a majority of cases filed under the POCSO Act were related to elopement. The judge further said that suggestions made by him regarding insulation of teenagers may be discussed and debated by all the stakeholders.
The judge further said that such teenagers could be dealt with under more liberal provisions of law by introducing the latter in the POCSO Act itself. He expressed his concern over the ever-increasing number of sexual offences despite stringent laws and various steps taken by the State to create awareness about them. He recommended that the government consider appointing a high-level committee comprising social auditors, psychologists, social scientists and other eminent people to study the problem and come up with solutions to arrest the rise in such crimes.
In his 55-page judgment, the judge said: “Before bringing the curtain down, certain loud thinking on the issue needs to be expatiated. Of late, society has been witnessing alarming rise of incidence of sexual assault on women and children as well. More than treating such growing incidence as a legal issue, dealing with the offenders of sexual assault by resorting to most deterrent provisions of penal laws, the cause of such perverse and wicked behaviour among some men, who were otherwise normal in their disposition, need to be examined and studied, like what are the factors which are likely to constitute and provoke such predatory sexual instincts to some members of the society to commit such horrific crimes, shaking the very moral foundation of the society we live in. Literally, no day is spared without a report of sexual assault on children and women, despite stringent laws dealing with such crimes.”
He added: “Society must collectively introspect what is it that drives some men to unleash their libidinous rage on hapless children and women of all ages. The cause for such abominable deviant conduct on the part of the perpetrators’ sexual crimes on children and women is perhaps because of access to uncensored pornographic and erotic materials that are available on the internet 24×7. Access to such provocative and lewd sites lead to criminal sensuality that drives the perpetrators to commit such appalling crimes on children and women in complete depravity. When minds are filled with lust, smouldering all the time by watching pornographic site of all kinds on the handset or otherwise, such crimes are the natural result of the depraved minds.”
His anguish was evident when he said: “Further, the society which dominantly comes under the influence of mainstream cinema, must collectively express its concern over certain contents of some films, though certified by the censor board, which are created and intended to appeal to the baser instincts of the viewers. In some films, women are objectified and stereotyped and portrayed as mere symbol of carnal attraction and amorous appeal. The society which has been rooted in one of the oldest civilisations of the world is facing its gravest challenge of steep cultural fall and degradation of an inconceivable kind, where children and women come under constant sexual attacks, day in and day out, pushing the society to the brink of its civilised existence. In a society where sexual crimes against children and women are the order of the day, something has gone horrendously wrong with evolution. The answer must be found beyond the criminal laws and its implementation.”
Interestingly, many child rights activists and NGOs oppose these recommendations of the High Court. “This is a dangerous development. India is a signatory to international conventions which prescribe that the age of children is 18. The Juvenile Justice Act, the POCSO Act, the National Commission for Protection of Child Rights and other related Acts all say that up to 18 years, a boy or girl is considered a child. You can vote, you can open a bank account, you cse and you can own a property only if you attain the age of 18. Then how can you decrease the age of a child to 16 for consensual sex?” asked A Devanayan, an activist.
“The High Court says that those who are indulging in consensual sex after the age of 16 (for girls) and 21 (for boys) can face trial under other provisions of criminal law and not under POCSO. This is inviting disaster. Over 75 to 80 percent of rape cases (where the affected children were below 18) which were conducted under other provisions of criminal laws ended up in the acquittal of the accused persons. But in cases which were conducted under the POCSO Act, the success is far better. So the government and lawmakers should reconsider this recommendation of the Madras High Court.”
Another child rights activist, Ponnivalavan, said such recommendations are a recipe for disaster. “Already, the Modi government had started tinkering with the Juvenile Justice Act by bringing down the age of children from 18 to 14 for labour. This amendment says that children who have attained the age of 14 can be used in family professions after their schooling hours.
“When the concept of ‘family’ itself has not been defined, how can we ensure that children are not forced to work in family professions? This will put the clock back. At a time when crimes against children are on the rise, this is a sad development.”