Understanding the POCSO Act and the Debate Around Teenager Consent

Introduction 

• The Protection of Children from Sexual Offences (POCSO) Act was introduced in 2012 to safeguard children from sexual abuse and exploitation. Since its enactment, the Act has played a pivotal role in ensuring the protection of minors from sexual offences. However, as time progresses, the need to reconsider certain aspects of the law has surfaced. 
• One such issue that has raised significant concern among legal experts, human rights activists, and civil society members is the criminalization of consensual sexual relationships between teenagers aged 16-18 years.

A Closer Look at the POCSO Act: Its Intent and Implementation

• • The POCSO Act came into effect in 2012 with the primary aim of protecting children from sexual offences, which include assault, harassment, and pornography. The law is designed to protect minors from any form of sexual exploitation, ensuring that those under 18 are shielded from being victims of sexual abuse.
  • Despite its well-meaning provisions, the Act has faced criticism in cases involving teenagers aged 16-18 years. In these cases, where both parties are adolescents engaging in a consensual relationship, some argue that criminalizing such interactions may not align with the Act’s protective intent. Many activists and legal experts have called for a nuanced approach, one that safeguards adolescents from exploitation while respecting the autonomy of consensual relationships.

• The Impact of Criminalising Adolescent Consent on Justice: The criminalisation of consensual sexual relationships between adolescents aged 16 to 18 remains a contentious issue in India. 

• • • Misuse of the Law: Criminalising consensual sexual relationships between adolescents can result in the misuse of the law, where young people in voluntary, consensual relationships are unnecessarily prosecuted. In many cases, teenagers aged 16 to 18 who engage in consensual relationships are treated as offenders rather than being protected. This contradicts the protective intent of the POCSO Act, which aims to shield children from exploitation, not penalize adolescents for engaging in normal, consensual behavior.
    • Over-criminalisation of Adolescents: Adolescents, in this context, are often not recognized as having the capacity to engage in consensual relationships, leading to unjust criminalisation. This approach fails to distinguish between sexual offences and normal adolescent behavior. The law, by treating consensual relationships as crimes, deprives adolescents of their sexual autonomy, which is a fundamental right in a free society. This results in criminalisation where no abuse or exploitation exists.

• Depriving Adolescents of Agency: By categorizing anyone under the age of 18 as a child, the law effectively denies adolescents the agency to make consensual decisions about their relationships. Section 2(d) of the POCSO Act defines any person under 18 as a child, rendering their consent legally irrelevant. This blanket classification fails to take into account the evolving maturity of adolescents, who may possess the emotional and psychological capacity to engage in consensual relationships.

• Legal Basis for an Exception for 16-18-Year-Olds: The push for an exception for consensual relationships between adolescents aged 16-18 is grounded in evolving legal norms and international perspectives. The argument for decriminalisation rests on a combination of legal precedents and international standards that recognize the evolving capacities of adolescents.

• • Evolving Capacities of Adolescents: The UN Convention on the Rights of the Child (UNCRC), to which India is a signatory, acknowledges that adolescents possess evolving capacities. This concept suggests that individuals above 16 may have sufficient maturity to make informed decisions, including those related to consensual sexual relationships. International norms support the idea that children above 16 can engage in consensual acts, provided the relationships do not involve exploitation or coercion.
  • Madras High Court Judgment (Vijayalakshmi vs. State, 2021): In a landmark case, the Madras High Court held that consensual relationships among adolescents should not be criminalised, especially when the age difference is minimal (within five years). In the case of a 17-year-old girl and her 19-year-old partner, both were seen as victims of the misuse of the POCSO Act rather than offenders. The court’s ruling reinforced the argument that adolescents, in certain circumstances, should not face criminal prosecution for engaging in consensual relationships.
  • Amicus Curiae Submissions to the Supreme Court (2024): In 2024, Senior Advocate Indira Jaising submitted to the Supreme Court that an exception should be read into the POCSO Act to decriminalise consensual sex between adolescents aged 16-18. Jaising argued that sexually mature adolescents should not have their consensual relationships labelled as abuse under the law, particularly when there is no evidence of coercion, exploitation, or harm.
  • Law Commission of India Report (2023): While the Law Commission of India did not explicitly advocate for a change in the age of consent, the 2023 report recommended introducing guided judicial discretion in cases involving 16-18-year-olds in consensual relationships. The Commission suggested that judges should have the flexibility to consider the consensual nature of the relationship when deciding on punishment, ensuring that adolescents do not face disproportionately harsh penalties for engaging in relationships that are not exploitative.

The Background to the Enactment of the POCSO Act

• India has long been committed to child protection through constitutional and international legal frameworks. Provisions under Articles 15(3), 21A, 24, and 45 of the Constitution, as well as international conventions like the UN Convention on the Rights of the Child (CRC), outline the fundamental rights and protections for children. However, for a long time, India’s legal system lacked specific provisions to address child sexual abuse, resulting in a significant gap in child protection laws.
• Despite the presence of strong constitutional guarantees for children, there was no clear, dedicated legislation to address the issue of child sexual abuse until the enactment of the POCSO Act. 
• Prior to its passage, Indian Penal Code (IPC) provisions, which were primarily designed to address sexual offences against women, did not adequately cover the sexual exploitation of children. The IPC’s general provisions, such as Section 354 (assault with intent to outrage modesty), failed to account for the unique circumstances and impacts of sexual offences involving children.
• One of the most glaring examples of the shortcomings of the existing legal framework was seen in the State of Punjab v Major Singh case (1966). In this case, the accused was charged under Section 354 of the IPC, with assault aimed at outraging the modesty of a child. However, the Punjab High Court acquitted the accused, arguing that a seven-and-a-half-month-old infant did not possess “womanly modesty,” a key condition for the application of Section 354. This judgment was later overturned, but it highlighted significant flaws in the law, which was not designed to handle child sexual abuse cases. Such judgments reinforced the need for a specific and comprehensive legal framework to address the issue.
• The IPC also failed to recognize the sexual assault or molestation of boys, leaving an entire category of victims without legal protection. Furthermore, the Code of Criminal Procedure (CrPC), which governs criminal trials in India, did not account for the special needs of child witnesses in sexual abuse cases. Children, as victims, often require additional support to ensure they can participate effectively in the criminal justice process. The lack of procedures tailored to their emotional and psychological needs meant that many child victims faced difficulties in testifying, further exacerbating their trauma.
• In response to these gaps and shortcomings, the Protection of Children from Sexual Offences (POCSO) Act was introduced in 2012. The Act was designed to address the growing concerns about child sexual abuse by establishing a comprehensive legal framework specifically for the protection of children. The POCSO Act not only criminalizes sexual offences against children but also provides procedures for child-friendly trials, ensuring that child victims receive the support they need throughout the judicial process.

The Path to the Enactment of the POCSO Act

• 42nd Law Commission Report (1971): The first significant step toward a dedicated child protection law came in the 42nd Law Commission Report (1971). This report recommended the inclusion of a specific provision to criminalize the sexual abuse of children of all ages and genders. It recognized the gaps in the existing legal framework and highlighted the need for a more robust approach to addressing child sexual abuse in India.

• 156th Law Commission Report (1997): The 156th Law Commission Report (1997) took a different stance, suggesting that the existing provisions under Indian law, especially those related to sexual offences in the Indian Penal Code (IPC), were adequate to deal with the issue of child sexual abuse. While this report did not immediately lead to legislative changes, it contributed to the ongoing debate about the sufficiency of existing laws and the need for reform.

• 172nd Law Commission Report (2000): In 2000, the 172nd Law Commission Report proposed a significant shift in how sexual offences, particularly against children, were to be treated. The report recommended several key amendments to the IPC, including making Section 375 (rape) gender-neutral to include male victims, increasing penalties for sexual offences committed by near relatives or persons in positions of trust, and introducing penalties for actions like touching any part of the body of an adolescent with sexual intent. These recommendations laid the groundwork for the eventual creation of a dedicated child protection law.

• Goa Children’s Act (2003): In 2003, the State Government of Goa enacted the Goa Children’s Act, a regional law aimed at promoting child rights and development. This Act was particularly significant as it addressed the rise in child abuse cases in the state and sought to counter the growing threat of child abuse rackets. It marked an early attempt at a comprehensive legal approach to child protection in India.

• Draft Bill and Recommendations (2005–2007): In 2005, the Department of Women and Child Development took another important step by preparing the Draft Offences against Children (Protection) Bill. This Bill sought to address a range of offences targeting children, including sexual abuse. However, it was the Ministry of Home Affairs that suggested the need for a separate, comprehensive legislation dedicated solely to child abuse. The discussions around the Bill eventually gained momentum, pushing the agenda for a more focused child protection law.

• • In 2007, the Ministry of Women and Child Development published the report ‘The Study of Child Abuse’, which was based on a survey of approximately 12,500 children. This report revealed a startling statistic: 50.76% of the children surveyed reported having faced some form of sexual abuse. The findings highlighted the urgency of addressing child sexual abuse and the need for legal reforms to safeguard children.

• POCSO Bill Draft and Passage (2010–2012): In 2010, the Ministry of Women and Child Development took a decisive step by preparing the draft Protection of Children from Sexual Offences Bill, which would eventually become the POCSO Act. After extensive deliberations and revisions, the Bill was passed by the Indian Parliament in June 2012, and it came into effect on November 14, 2012, on the occasion of Children’s Day.

Key Provisions of the POCSO Act

• Ensuring Confidentiality of the Victim’s Identity: One of the primary features of the POCSO Act is its provision for ensuring the confidentiality of the victim’s identity. To protect the privacy of the child, the Act mandates that the name of the child must not be disclosed in the media or any public domain unless permitted by the Special Court. This confidentiality is crucial to prevent further trauma to the child and their family, while also safeguarding their identity from public exposure.

• Gender-Neutral Provisions: The POCSO Act is gender-neutral, meaning it does not differentiate based on the gender of either the victim or the perpetrator. Any individual under the age of 18 is considered a child, and the Act extends protection to both male and female children equally. This approach also ensures that women can be held accountable if found guilty of sexually abusing a child, a crucial step in ensuring that no one is above the law when it comes to child protection.

• Mandatory Reporting of Child Abuse Cases: The POCSO Act imposes a mandatory reporting requirement for any individual who has knowledge of or suspects child sexual abuse. This provision was introduced to address situations where family members or close relations may attempt to cover up instances of abuse. By requiring third parties—such as neighbors, teachers, healthcare workers, or anyone aware of the abuse—to report it, the law aims to close gaps in the detection of child abuse and ensure that these cases are brought to light. This provision is rooted in the idea that society has an obligation to protect the interests of vulnerable children.

• Child-Friendly Investigation and Trial Process: To minimize the trauma experienced by child victims during the legal process, the POCSO Act lays out specific protocols for child-friendly investigations and trials. These measures include procedures for recording statements, ensuring the medical examination is done with sensitivity, and the creation of special child-friendly courts. The goal is to ensure that the child’s interaction with the justice system is as comfortable and supportive as possible, helping to reduce the emotional and psychological stress children often face in criminal proceedings.

• Differentiation of Sexual Abuse Forms: The POCSO Act takes a comprehensive approach by differentiating between various forms of sexual abuse. The Act specifically categorizes both penetrative and non-penetrative assault, sexual harassment, and the creation of Child Sexual Abuse Material (CSAM) or child pornography. Each category is assigned a stringent penalty to ensure that perpetrators are held accountable for their actions. The law also targets those who exploit children for the production of pornographic content, underscoring the severity of such crimes and ensuring robust legal deterrents.

• Stringent Punishments for Child Sexual Exploitation: The POCSO Act lays down strict punishments for anyone found guilty of sexually exploiting children. These punishments are designed to be severe enough to act as a deterrent, sending a clear message that such crimes will not be tolerated. The Act’s provisions ensure that those who exploit children for sexual gain face significant legal consequences, contributing to a safer environment for children.

 Key Revisions Made to the POCSO Act

• • In 2019, the Ministry of Women and Child Development introduced significant amendments to the Protection of Children from Sexual Offences (POCSO) Act in response to the rising cases of child sexual abuse and the emergence of particularly heinous crimes against children. The revisions were made to enhance deterrence for offenders, tighten the provisions for child protection, and ensure greater safety for vulnerable children across the country. The amendments brought several critical changes to the Act, which are detailed below.

• Increased Punishment for Penetrative Sexual Assault: One of the most notable changes introduced through the 2019 amendment was the increase in the minimum punishment for penetrative sexual assault. The punishment for penetrative sexual assault was raised from a minimum of 7 years imprisonment to 10 years imprisonment. This revision aimed to provide a stronger deterrent against sexual offences involving children. The change was designed to reflect the seriousness of such crimes and emphasize that child sexual abuse is a severe violation of children’s rights and dignity.

• Aggravated Penetrative Sexual Assault: A Steep Increase in Punishment: In cases of aggravated penetrative sexual assault, which involves more severe circumstances, such as the involvement of a person in a position of trust or authority over the child, the punishment was further increased. The amendment raised the minimum punishment from 10 years imprisonment to 20 years imprisonment. This revision sought to hold offenders accountable for particularly heinous acts that cause grave harm to children.

• Introduction of the Death Penalty for Aggravated Penetrative Sexual Assault: In one of the most stringent revisions to the POCSO Act, the 2019 amendment introduced the death penalty for the offence of aggravated penetrative sexual assault. This drastic measure was introduced to send a strong message that certain crimes against children—especially those of a brutal or exploitative nature—would face the most severe consequences. The introduction of the death penalty reflects the state’s commitment to protecting children and ensuring that those who commit extreme crimes are held to the highest standard of punishment.

• Criminalizing the Transmission of Child Pornography: Another significant change was the introduction of specific offences related to child pornography. The amendment made it a punishable offence to transmit or propagate pornographic materials involving children, which includes both the creation and distribution of such materials. Additionally, the amendment introduced penalties for failing to destroy or report child pornography when it is encountered. These provisions aim to curb the spread of Child Sexual Abuse Material (CSAM) and protect children from being exploited for such illicit activities.

Shortcomings in the Implementation of the POCSO Act

• Challenges at the Trial Stage: 

• • • Lack of Special Courts in All Districts: One of the major obstacles in the effective implementation of the POCSO Act is the lack of Special Courts in all districts. While the Act mandates that POCSO cases should be handled by designated Special Courts, many districts still do not have the infrastructure to accommodate these courts. This results in cases being delayed or handled in general courts, which are not equipped to deal with the sensitive nature of child sexual abuse cases.
    • Shortage of Special Public Prosecutors: In addition to the lack of Special Courts, there is also a shortage of Special Public Prosecutors who are trained to handle such sensitive cases. The absence of dedicated, well-trained prosecutors affects the prosecution of cases, leading to delays and sometimes mishandling of evidence and testimonies.
    • Non-Compliance with Timelines: The POCSO Act sets specific timelines for the trial process, but these timelines are often not adhered to. The slow pace of proceedings and delays in trial contribute to the prolonged trauma experienced by child victims. Non-compliance with these prescribed timelines hampers the timely delivery of justice.

• Post-Trial Stage Issues:

• • • Delays in Compensation: While final compensation may be included in the final sentence, interim compensation is often overlooked in the orders of the Special Courts. The delay in the disbursal of compensation, especially for interim relief, creates additional hardships for child victims and their families, who are already dealing with emotional and financial distress.

• Implementation Hurdles:

• • • Slow Pace of Special Court Designation: The slow pace of designating Special Courts across the country remains a significant hurdle. Although the Act mandates that such courts handle child sexual abuse cases, the delays in establishing these courts limit the effectiveness of the law and contribute to the pendency of cases.
    • Delays in Investigation and Filing of Chargesheets: Another significant issue is the delay in investigations and the filing of chargesheets. These delays are often due to administrative inefficiencies, a shortage of trained personnel, and a lack of resources. Consequently, the child victims face further distress, and the accused may exploit these delays to evade justice.
    • Non-Appointment of Support Persons: The POCSO Act emphasizes the need for support persons to assist child victims throughout the legal process, but often, these support persons are not appointed. The absence of emotional and psychological support for victims of child sexual abuse during investigations and trials can further traumatize the child, making it harder for them to testify and participate in the legal proceedings.

• Pendency of Cases and Administrative Challenges:

• • • The pendency of POCSO cases has reached 85% as of 2020, creating a massive backlog and delaying justice for the victims. Transfers of cases from one court to another—a frequent occurrence—indicate administrative mismanagement or a wrongful appreciation of facts by law enforcement, further complicating the legal process.

• Legal Aid Mismanagement:

• • • In some instances, legal aid providers contribute to the problem by introducing false or extraneous information to make cases stronger. This misrepresentation can complicate legal proceedings and delay justice, while also potentially harming the credibility of the case.

• Inadequate Awareness About the POCSO Act:

• • • A significant barrier to the effective implementation of the POCSO Act is the lack of awareness about the law. A 2020 study by World Vision India found that only 35% of children and 32% of caregivers were aware of the POCSO Act. The awareness levels varied drastically between urban, rural, and tribal areas, with tribal regions being the least informed. This lack of awareness prevents families from seeking help and legal recourse when a child is abused.

• Inadequate Training for Stakeholders:

• • • The child protection system involves multiple stakeholders, including medical practitioners, juvenile justice boards, law enforcement officials, judges, and public prosecutors. However, there is inadequate training provided to these stakeholders on how to handle cases of child sexual abuse effectively. For example, private medical practitioners, who are often the first point of contact for child victims, usually lack proper training to deal with child sexual abuse cases, which can negatively impact the investigation and trial process.

• Low Conviction Rates:

• • One of the most concerning statistics related to the POCSO Act is the low conviction rate. A report by Vidhi Centre found that only 14% of cases resulted in conviction, while 43% were acquitted. The frequent transfers of cases from one court to another also indicate administrative inefficiencies and potential mismanagement of cases. These factors contribute to the low conviction rates, which undermine the overall effectiveness of the law.

Way Forward

• • The Protection of Children from Sexual Offences (POCSO) Act has played a significant role in providing a legal framework for safeguarding children against sexual abuse in India. However, challenges in its implementation have limited its effectiveness. To address these issues, the Vidhi Centre for Legal Policy has provided a series of recommendations aimed at strengthening the Act’s functioning. These suggestions span legislative, procedural, and awareness-related aspects that can enhance the law’s overall impact.

• Legislative and Policy Recommendations:

• • • Reducing the Age of Consent: One of the significant recommendations from the Vidhi Centre is to reduce the age of consent from 18 to 16 years, with adequate safeguards. This change would align the law with social realities where teenagers aged 16-18 often engage in consensual relationships. However, this recommendation also stresses the need for clear safeguards to prevent exploitation and ensure that such relationships are not abusive.
    • Public Consultations for Amendments: Before making substantial amendments to the POCSO Act, the Vidhi Centre recommends that the government should conduct public consultations with domain experts. This process will ensure that the amendments are informed by evidence and diverse perspectives, which would lead to more effective legislation.
    • Time Limits for Interim Compensation: The POCSO Act mandates compensation for child victims, but there is often delayed disbursement. To address this, it is recommended that the Act should stipulate a time limit for the disbursement of interim compensation, ensuring timely financial support for victims.

• Enhancing the Functionality of POCSO Courts:

• • • Appointment of Special Public Prosecutors: A critical issue highlighted by the Vidhi Centre is the lack of adequately trained Special Public Prosecutors in POCSO courts. It is recommended that Special Prosecutors be appointed exclusively for handling POCSO cases. Monitoring of this appointment and its progress should be the responsibility of respective High Courts to ensure timely implementation.
    • Establishment of Vulnerable Witness Deposition Centres: In line with the Supreme Court’s judgment in cases like State of Maharashtra v Bandu @ Daulat and Smruti Tukaram Badade v State of Maharashtra, it is crucial to establish Vulnerable Witness Deposition Centres in all POCSO courts. These centres would offer an appropriate and sensitive environment for child witnesses to testify.
    • Hybrid Approach for Evidence Recording: The Vidhi Centre proposes a ‘hybrid’ approach for recording evidence, especially for certain witnesses such as doctors and forensic experts. Allowing virtual recording of evidence would make the process more flexible and accessible for witnesses who may face challenges in attending court in person.
    • Support Persons for Victims: To ensure the emotional well-being of child victims, it is crucial that support persons are appointed and remain present throughout all pre-trial and trial stages. These individuals help provide emotional support to children and assist them in navigating the legal process.
    • Training Judges and Prosecutors: The Vidhi Centre stresses the need for specialized training for judges and prosecutors to handle vicarious trauma, which may arise from dealing with the emotional weight of child sexual abuse cases. This training would equip them with the emotional resilience and skill set necessary to deal with such cases effectively.
    • Training Judges on Compensation Orders: Judges should also be trained to write operational compensation orders to ensure timely and effective disbursement of compensation to victims. Clear guidelines and proper training would enable courts to act swiftly and fairly when it comes to awarding compensation.

• Raising Awareness About the POCSO Act

• • • Age-Appropriate Education in Schools: One of the key recommendations is to integrate age-appropriate information about the POCSO Act into the school curriculum. Teaching children about their rights and available helplines like Childline will equip them to identify and report abuse.
    • POCSO Awareness for School Staff: It is also essential to train school staff on recognizing signs of abuse and the legal procedures for reporting such incidents. Moreover, the POCSO Act should be included in the curriculum for students undergoing teaching courses such as B.Ed and M.Ed, ensuring future educators are well-equipped to handle cases of child abuse.
    • Capacity Building and Sensitivity Training: Capacity-building programs for various stakeholders in the child protection system, including law enforcement, medical practitioners, and social workers, are crucial. These programs should focus on sensitivity training to ensure that all professionals involved in child protection are equipped to handle such cases with the necessary care and attention.

• Strengthening Forensic Science Laboratories: The Vidhi Centre also recommends the expansion and improvement of Forensic Science Laboratories (FSLs). Setting up more FSLs and enhancing the infrastructure and capacity of existing laboratories would ensure quicker and more reliable forensic evidence collection, which is crucial for child sexual abuse cases.