From UPSC perspective, the following things are important :
Prelims level : POCSO Act, Definition of Child
Mains level : Read the attached story
- While acquitting a young accused of sexual assault charges under the POCSO Act, Madras High Court made two significant suggestions that:
- the age for the definition of a “child” be taken as 16 rather than 18, and
- the Act account for the difference in age between the offender and the girl involved in consensual sex
Madras HC Judgement
- The definition of ‘Child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18.
- Any consensual sex after the age of 16 can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision.
- The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more.
- 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.
Why decriminalizing the consensual act?
- A senior Supreme Court advocate called for decriminalization of consensual sex between those aged between 16 and 18.
- This provision denies young person 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.
- Various studies tell us in the age group between 16-18, there is a lot of experimental consensual sexual acts that take place.
- However in most of the cases, the parents of the girl lodge a complaint against the boy that it was non-consensual.
- The judgement will help eliminate the unwarranted criminalisation of consensual or romantic sexual relations.
Enabling more scope for fair trial
- 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.
- In consensual sex both are offenders or both are victims.
- Many activists feel that consensual sex cannot be criminalised at an age when sexual exploration is common, but argued against singling out the boy.
- Normally the boy is tried under JJ and the girl is sent to CWC. They are equal partners.
- There can always be a discussion on what should be the age gap between alleged offender and victim.
- It is important to acknowledge that the law at present on this subject is very harsh and does not leave any scope for details and dynamics of a relationship to be taken into account by courts.