UPSC MAINS 2019 : Madras HC suggested on age of consent & age gap

Madras HC suggested on age of consent & age gap

 

Topic : Madras HC suggested on age of consent & age gap

Topic in Syllabus : General Studies 1: Indian Society

 

Context:

Madras HC suggested on age of consent & age gap

The Madras High Court has suggested to redefine the definition of ‘Child’ under Section 2(d) of the POCSO Act as a person below 16 years of age instead of 18 years so that any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act.

 

Suggestions made by court:

  • Justice V. Parthiban made this observation while acquitting a boy who was convicted under POCSO Act
  • The Judge took note of a report that majority of cases involving minor girls are due to relationship between adolescent boys and girls.
  • Though under Section 2(d) of the Act, ‘Child’ is defined as a person below the age of 18 years and in case of any love affair between a girl and a boy, where the girl happened to be 16 or 17 years old, either in the school final or entering the college, the relationship invariably assumes the penal character by subjecting the boy to the rigours of POCSO Act, the court said.
  • The court said that more liberal provision can be introduced in the Act itself in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual assault on children below 16 years.
  • The judge also suggested constituting a high level committee comprising persons of eminence from various walks of life, like Social auditor, psychologists, Social Scientist etc., to investigate and study the malady afflicting the Society.
  • While legal experts and child rights activists welcomed the redefinition of “child”, some of them called for further discussions on the suggestion for an amendment that would factor in the age difference.

 

Expert’s opinion about suggestion:

  • Supreme Court advocate Vrinda Grover called for decriminalization of consensual sex between those aged between 16 and 18.
  • “This provision denies young person’s falling in this age bracket consensual sexual agency, and subjects them to the control of families which motivated by casteist, communal or orthodox and regressive views lodge false criminal complaints”.
  • “On the one hand, when the age of the juvenile in conflict with law was lowered from 18 to 16 (Juvenile Justice Act) in violation of all international conventions, the move was regressive.
  • Study after study tells that, in the age group between 16-18, there is a lot of experimental consensual sexual acts that take place.
  • Child rights expert and Delhi High Court advocates observed that after the age of consent was raised to 18 years through the POCSO Act, 2012, “there has been a massive swell in incarceration of young people across the country, even in cases where sexual relation was outcome of a love affair or was consensual.
  • Former National Commission for Protection of Child Rights chairperson DrShantha Sinha said: “The issue of consent would have to be decided from the circumstances rather than putting the victim on the stand and asking her if she gave consent.
  • Professor VedKumari, dean of Delhi University’s law faculty, too felt consensual sex cannot be criminalized at an age when sexual exploration is common, but argued against singling out the boy.

 

Expert’s opinion About Age Gap:

  • Vrinda Grover said the suggestion on age gap should be discussed. “I agree with the principle that age difference should not be more than 4-5 years.
  • Rebecca John, however, said, “I am not entirely sure about the age gap. Just because there is age gap, it cannot be criminalized”.
  • Asthana said, “There can always be a discussion on what should be the age gap between alleged offender and victim”. But what is more important is “to acknowledge that the law at present on this subject is very very harsh and does not leave any scope for details and dynamics of a relationship to be taken into account by courts.”
  • Delhi University’s Kumari noted that “an age gap provision under which consensual sex with a person just a little older is there in many jurisdictions”. “That prevents a much older person from exploiting the minor because crushes are also normal at this age”.

(Here more important is opinions than names)

 

Contention with the age gap:

  • An older man using his power and position to exploit a younger woman could be subjected to criminalisation.
  • But just because there is more age gap between the alleged offender and the victim, a consensual act cannot be criminalised.
  • Nevertheless, it could prevent a much older person from exploiting a minor and her innocence.
  • Age difference not being more than 4-5 years is followed in the UK.
  • In the US also there are close-in-age exemptions, also called Romeo and Juliet laws.

 

Protection of Children from Sexual Offences Act:

In order to effectively address the heinous crimes of sexual abuse and sexual exploitation of children through less ambiguous and more stringent legal provisions, the Ministry of Women and Child Development championed the introduction of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

 

Salient features:

  • The Act defines a child as any person below eighteen years of age, and regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
  • It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor.
  • People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act.
  • The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.

 

Punishments for Offences covered in the Act:

  • Penetrative Sexual Assault (Section 3) on a child — not less than seven years which may extend to imprisonment for life, and fine.
  • Aggravated Penetrative Sexual Assault (Section 5) — Not less than ten years which may extend to imprisonment for life, and fine
  • Sexual Assault (Section 7) i.e. sexual contact without penetration — Not less than three years which may extend to five years, and fine
  • Aggravated Sexual Assault (Section 9) by a person in authority — Not less than five years which may extend to seven years, and fine
  • Sexual Harassment of the Child (Section 11) — Three years and fine.
  • Use of Child for Pornographic Purposes (Section 13) — Five years and fine and in the event of subsequent conviction, seven years and fine Section 14 (1)

 

Provisions related to conduct of trial of reported offences:

  • The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process.
  • The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences.
  • The Act recognizes that the Intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized.
  • The attempt to commit an offence under the Act has been made liable for punishment for upto half the punishment prescribed for the commission of the offence.
  • The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence.

 

Way forward:

  • The government will have to take steps to eliminate the unwarranted criminalization of consensual or romantic sexual relations.
  • Any relaxation of stringent punishments entailed in the Act may also be misused.
  • So the most critical thing here is to distinguish between the consensual sex between adolescents and abuse or exploitation.
  • The onus is on investigating officers to differentiate between the two.
  • But Inspectors and SIs are often driven by their moral compass around sex and sexual acts.
  • They should be sensitised and imparted with intelligence and self-awareness for nuanced reading and application of the law.

 

Conclusion:

The experts and child rights activists welcomed the redefinition of “child”, some of them called for further discussions on the suggestion for an amendment that would factor in the age difference.

 

Sample Question:

“More liberal provision can be introduced in the POCSO Act itself in order to distinguish the cases of teenage relationship after 16 years, from the cases of sexual assault on children below 16 years.” Examine the statement.

 


 

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