Child rights and anti-trafficking activists have welcomed the observations made by the Madras High Court recently that physical relationships between teenagers above 16 years due to infatuation or innocence be insulated from the ‘draconian provisions’ of the Protection of Children from Sexual Offences (POCSO) Act, 2012, which entails seven to 10 years of rigorous imprisonment.
‘Draconian provisions’
Setting aside the conviction and 10-year imprisonment imposed by a Mahila Court on a school student for kidnapping his 17-year-old schoolmate and having sexual relationship with her in the guise of having performed a ‘marriage’ in a temple, Justice V. Parthiban on April 26 suggested that suitable amendments, including a change in the definition of the term ‘child,’ which now encompasses anyone below 18 years of age, be made so that a consensual relationship between a girl above 16 years of age and a boy between 16 and 21 years of age need not attract the draconian provisions.
Welcoming the judgment, Help Organisation secretary N.V.S. Rammohan said the observations come in the wake of a rise in the cases registered under POCSO Act and in some cases, the Act being misused against the accused, often a young adult.
Misuse of Act
“The accused in these cases, once convicted of sexual exploitation under the criminal justice system, suffer multiple counts of torture and violence by the system, harms them irreparably. This was never the intent of the POCSO Act and the High Court’s suggestion to recognise that consensual sex between adolescents should not be criminalised will trigger some recourse to the innocents,’’ Mr. Rammohan said.
At the same time, any relaxation of stringent punishments entailed in the Act may also be misused to absolve the perpetrators of sexual abuse and exploitation of children and traffickers who entrap children for sexual exploitation.
“The most critical thing here is to distinguish between the consensual sex between adolescents and abuse or exploitation which lies with the investigating officers. Inspectors and SIs are often driven by their moral compass around sex and sexual acts. They lack the skills for such nuanced reading and application of the law. The demand from the criminal justice system for such intelligence and self awareness is hard to meet by police stations which are short staffed, burdened with cases and a myriad of other responsibilities,’’ Mr. Rammohan pointed out.
