Good Act, bad provision

The obvious, first. The Protection of Children from Sexual Offences Act, 2012, recently passed by both Houses of Parliament, must be wholeheartedly welcomed for filling a glaring lacuna in the law. While rape is a serious criminal offence under the Indian Penal Code, the law was hopelessly deficient in dealing with a range of sexual crimes such as groping and harassment, covered by weak and imprecise provisions such as “outraging the modesty of a woman.” Also, despite presumptions to the contrary, young boys are frequently subjected to sexual abuse — a study commissioned by the Ministry of Women and Child Development in 2007 showed that almost 53 per cent of the children abused were male. Against this context, the Act gets a couple of things incontestably right. It is steadfastly gender neutral. And it lays down stringent punishments (up to life imprisonment) for a broad range of sexual crimes such as non-penetrative sexual assault, sexual harassment, and the use of children for pornography. The legislation is also marked by the introduction of special procedures to prevent the re-victimisation of children at the hands of an insensitive justice delivery system. These include measures for recording a child's evidence, for protecting his or her identity and for providing children with assistance and expertise from professionals in the fields of psychology, social work and so on.

The problem with the Bill lies in an indefensible change made at the behest of the Parliamentary Standing Committee that reviewed it. While the earlier 2001 version of the Bill did not punish consensual sexual activity if one or both partners were above 16 years, the one recently passed criminalises all sexual contact either with or between those under 18. The change is out of consonance with other laws not to speak of our social realities. Under Section 375 of the Indian Penal Code, sex with a girl under 16 years with or without her consent amounts to rape. To believe that it is too early for those between 16 and 18 to have sex is one thing. But to criminalise all consensual sexual activity on the ground that everyone below 18 is a child — and that too in a conflicted social environment where child marriages persist on the one hand and where teenagers are becoming increasingly aware about sexuality on the other — can have terrible consequences. Only recently, the Delhi High Court described the move to raise the age of consent from 16 to 18 as “regressive” and “draconian,” while acquitting a youth of kidnapping and raping a 17-year-old girl who he had gotten married too. In its present form, the Bill seems set to encourage bogus and unjustified complaints. The best solution? Retain the Act and amend the age provision.