Amid rising concerns regarding cases of consensual “romantic relationships” falling within the scope of the POCSO Act, the Chief Justice of India DY Chandrachud today said the legislator should take into account growing concerns about the age of consent under the 2012 law, which is 18 years old.
The CJI delivered the keynote address at the inaugural two-day session of the National Stakeholder Consultation on the POCSO Act is organized by the Supreme Court Committee on Juvenile Justice, in partnership with UNICEF.
During its speech, the CJI noted that one of the topics that would be discussed by the panel during the session would be POCSO court rulings in “Romantic Matters,” or cases involving consenting adolescents engaging in sexual activity.
Noting that such cases pose tough questions to judges, he said:
“You are aware that the POCSO law criminalizes all sexual acts under the age of 18, regardless of whether there is actual consent among the minors, because the presumption of the law is that there is no legal consent among persons under the 18 years. In my time as a judge, I have found that this category of cases raises difficult questions for judges across the board. There is a growing concern about this issue that needs to be considered by the legislator with a view to reliable research by youth health care experts,” remarked CJI Chandrachud while speaking about the matter.
The speech of the CJI can be viewed here.
It may be noted here that the POCSO law criminalizes all sexual activity for persons under the age of 18, even if there is consent between two minors engaged in sexual activity, because the law assumes that consent given by minors (under the age of 18 years) is not allowed. not agree at all.
CJI Chandrachud’s comment comes against the background of the recent comment from the Madras High Court, which said the Court is “eagerly waiting” for a change in the law to appropriately deal with cases related to adolescent relationships.
The bank of Justice P Velmurugan made this comment while upholding the conviction and sentence of one Ravi who was charged with kidnapping and forced marriage to a 17-year-old girl in May 2014. He was convicted by the court under sections 366 of IPC, section 5(l ) of the POCSO Act and section 3(1)(w)(i) r/w 3(2)(Va) of the SC/ST Act and sentenced to ten years unconditional imprisonment.
“While the law states that the person who has not yet reached the age of 18 is a child. This Court, being a Court of Appeals, is a final fact that the Court cannot go beyond the Statute. This Court also eagerly awaits the change in the legislature as expressed by my learned brethren‘ said the Court.
Read more about Madras HC’s observations here: Upholding conviction in POCSO case, Madras High Court says it ‘eagerly awaits’ law change for teenage relationship cases
It can be further noted that a few days after the Madras High Court delivered its verdict, the Director General of Police (DGP) of Tamil Nadu issued a circular instructing the police officer show no hurry in arresting juveniles in cases registered under the POCSO Act, as many such cases involve consensual romantic relationships.
Also last year, the Madras High Court had said: “Punishing an adolescent boy who enters into a relationship with an underage girl by treating him as an offender was never the purpose of the POCSO Act.“
Our readers may further note that recently the Delhi High Court also noted that the intent of the Protection of Children Against Sex Offenses Act (POCSO) was to protect children from sexual abuse and not to criminalize consensual romantic relationships of young adults .
Significantly, the Meghalaya High Court has granted exemptions to minors in such cases in a series of orders (read here, here and here). For example, in October 2022, while the POCSO charges against a minor’s partner were overturned, the Meghalaya Supreme Court noted that the term “sexual assault” under POCSO law can not are attributed to an act where there is mutual love and affection between a young couple (boyfriend and girlfriend).
Last week, former Supreme Court Justice Madan B. Lokur also said that 17-year-old boys and girls who are in a romantic relationship know what they are doing and are aware of the consequences and therefore why should they be prosecuted, he asked wonders.
He added: “So many of these cases where 17 year old boy and girl are in a romantic relationship…they know what they are doing. If they know what they are doing, they are aware of the consequences. Why would you prosecute them? When you talk about decriminalizing homosexual activity, what about decriminalizing it? That is also possible.”