Context: Karnataka High Court said the Law Commission of India would have to rethink the age criteria, to take into consideration the ground realities.

The terms of the POCSO Act

• Under the POCSO Act, 2012, and under several provisions of the IPC, whoever commits a penetrative sexual assault on a child — anyone below 18 years of age — can be imprisoned for a term that is not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

• Even if the girl is 16 years old, she is considered a “child” under the POCSO Act, and hence her consent does not matter, and any sexual intercourse is treated as rape, thus opening it up to stringent punishment.

Is the law being misused?

• The Karnataka High Court said the effect of such criminal prosecution of a minor girl or boy is causing severe distress to all concerned, including the families.

• Sometimes, disgruntled parents file a case to foil a relationship between two adolescents.

• In 2019, a study made a case for the age of consent to be lower than the age of marriage to decriminalize sex among older adolescents to protect them from the misuse of the law, sometimes by parents who want to control whom their daughters or sons want to marry.

• The study noted that in many cases, a couple elopes fearing opposition from parents resulting in a situation where families file a case with the police, who then book the boy for rape under the POCSO Act to marry under IPC or the Prohibition of Child Marriage Act, 2006.

Vijaylakshmi vs State Rep case

• The Madras High Court said the definition of ‘child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18.

• It said 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.

• The court suggested that the age difference in consensual relationships should not be more than five years to ensure that a girl of an impressionable age is not taken advantage of by “a person who is much older.

What has been done?

• Karnataka High Court Bench directed the Principal Secretary of the Education Department to constitute a committee to formulate suitable educational material for adolescents on the law on sexual offences and its consequences.

• Sometimes, a High Court uses its powers under Section 482 of the Criminal Procedure Code “to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

What needs to be done?

• Adolescents have to be made aware of the stringent provisions of the Act and also the IPC.

• Rights activists feel instead of helping the community, raising the age may force vulnerable women to remain under the yoke of family and social pressures.

Prevention of Children from Sexual Offences Act (POSCO Act):

• It is a gender-neutral law that defines a child as someone under the age of 18.

• Objective: To provide for the protection of children from the offences of sexual assault, sexual harassment, and pornography.

It covers

• Sexual harassment involves touch, and also that which doesn’t, such as stalking, making a child expose themselves, or exposing themselves to a child.

• Different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography.

• People who traffic children for sexual purposes.

• Sexual crimes happen over the internet.

• It includes possessing Child Sexual Abuse Material (CSAM), using children for the purposes of creating CSAM or exposing children to pornography or CSAM.

It does not cover

• The act does not explicitly include Grooming.

• Grooming involved acts of establishing, and building a relationship with a child either in person or online so as to facilitate either online or offline sexual contact with the child.

• It safeguards the interests of the child at every stage of the judicial process.

• It incorporates child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.

It deems a sexual assault to be “aggravated” under certain circumstances like:

• When the abused child is mentally ill.

• When the abuse is committed by a person in a position of trust or authority, like a family member, police officer, teacher, or doctor.

Punishments

• It places the burden of proof on the accused, following ‘guilty until proven innocent.

• The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.