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Issue of Consent in POCSO Act

Synopsis: The Madras High Court quashed a case of aggravated sexual assault of a minor under the POCSO (Protection of Children from Sexual Offences) Act. The High Court also mentioned the need to amend the POCSO act.

The case and ruling 
  • Madras HC was hearing a case of aggravated penetrative sexual assault under the POCSO act.
  • This case was filed against an auto driver, in his early twenties, for marrying a minor girl in 2018.
  • Recently the HC Quashed the case. In this case, the Court observed the consensual relationship between the accused and the minor girl.
  • The court stated that the POCSO Act is not intended to bring the romantic relationships between adolescents or teenagers within its ambit. Thus, the act requires appropriate amendments.
About the POCSO Act:
  1. POCSO was enacted as per Article 15 of the Constitution and the UN Convention on the Rights of the Child. It aims to protect children from sexual assault, sexual harassment, and pornography.
    • Article 15 allows the state to make special provisions for women and children.
  2. Aggravated penetrative sexual assault under the POCSO Act, 2012 is equal to the provision for aggravated rape.
    • It means rape occurs within a relationship of trust, leads to pregnancy or any other aggravating circumstance. 
  3. Further under POCSO, an individual will be punished if the victim is below 18 years. It does not consider the consent of minors as relevant. Thus, the accused can’t plead consent as a defence. 
Rationale behind the judgement:
  • POCSO has become a tool for the persecution of young people in consenting sexual relationships. The act completely ignores the natural sexual tendencies of adolescents and undermines their right.
  • The court also said that this case was purely individual in nature. Thus, releasing the accused in this particular case will not undermine the public interest.
  • Punishing consenting youngsters results in their persecution throughout life. This is more evident in cases where the minor victim has willingly eloped or married the accused or carrying his child. 

Concerns associated with judgement:

  • It goes against the established Supreme Court precedent of considering rape cases as a matter of public concern.
  • The Parliamentary Committee (Rajya Sabha) in 2011 prescribed a uniform age of 18. It would make sure that trials of child rape would focus on the conduct of the accused and the circumstances of the offence. Thus, The Possibility of consent was not meant to be an exception under POCSO.
  • The five State studies on the functioning of Special Courts under the POCSO Act shows the complicated nature of consensual cases. 
    • As per the study, adolescents can and do choose to have sex. However, they are still children, and their growing sexual autonomy is prone to abuse. This issue resulted in inconsistent and unprincipled adjudication.
Way Ahead:
  • The judgement has highlighted the urgent need of amending the rigid stance in the POCSO Act.
  • The courts should create a fine balance between the sexual rights of adolescents and their gullibility of being exposed.
  • Further, this balance can be rightly created when the legislature is willing to provide clarity on the core wrongs that POCSO is meant to address.

Source:THE HINDU

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