The recent High Court decisions have brought to the forefront the complexities surrounding consent and the age of consent under POCSO. In recent months, several High Courts have either quashed FIRs or acquitted accused persons under the Protection of Children from Sexual Offences (POCSO) Act, 2012, citing consensual sex as the reason. These decisions raise critical questions about the interpretation of consent and the age of consent, necessitating a thorough examination to ensure the best interests of the child.

Defining consent and the age of consent

• Consent:
• In the context of sexual relationships, consent is an explicit and voluntary agreement between individuals to engage in sexual activity. It must be given without any form of coercion, manipulation, or pressure.
• The concept of consent is crucial in promoting healthy and respectful relationships and preventing sexual misconduct.
• Age of Consent:
• The age of consent is a legal designation that specifies the minimum age at which an individual is considered capable of providing informed and lawful consent to engage in sexual activities.
• In the case of the Protection of Children from Sexual Offences (POCSO) Act, 2012, a child is defined as any person below the age of 18 years.
• Acts of penetrative sexual assault committed on children are considered criminal offenses under this act, regardless of their consent.

Recent High Court decisions regarding cases related to the POCSO Act

• Delhi High Court (July 12): The court granted bail to a 25-year-old accused, reasoning that the 15-year-old girl had eloped with him on her own and did not support the prosecution’s claim of sexual assault.
• Bombay High Court (July 10): The court quashed the conviction of a 25-year-old man under POCSO, stating that he had engaged in consensual sex with a 17-year-old girl. The girl had terminated her pregnancy after the accused was arrested.
• Madras High Court (July 7): The court quashed an FIR registered under POCSO and all related criminal proceedings. Furthermore, it directed the Director General of Police to produce reports of all such pending cases before the Court.
• Madhya Pradesh High Court (June 27): The court quashed an FIR registered under POCSO and all criminal proceedings, stating that the sexual relationship was consensual. The judgment did not mention the age of the accused, who happened to be the coach of the victim. Additionally, the Court recommended that the Indian government consider reducing the age of consent of the prosecutrix from 18 to 16 years.

Challenges and concerns over the recent High Court decisions

• Interpretation of Consent: One of the significant challenges lies in the interpretation of consent in cases involving minors. While the age of consent is legally defined as 18 years in India under POCSO, some High Courts acquitted accused individuals based on the premise of consensual sex, even when the victims were below the age of 18.
• Age Disparity: In some of the cases, there was a considerable age difference between the prosecutrix (the victim) and the accused. Despite this age disparity, the courts did not take it into account while delivering their judgments.
• Deterrence Factor: The harsh minimum imprisonment terms under POCSO for sexual offenses against minors, such as 10 years and 20 years for penetrative sexual assault and aggravated penetrative sexual assault, respectively, may have influenced the reluctance of courts to convict accused individuals in consensual sex cases.
• Legal Presumption: POCSO includes a mandatory legal presumption in favor of the victims. However, in some of the recent judgments, the High Courts did not consider this presumption, leading to questions about the application of the law in protecting the interests of the child victims.
• Child Welfare: The primary objective of POCSO is to safeguard children from sexual offenses, irrespective of consent. The recent decisions have sparked debates about whether these judgments truly serve the best interests of the child, or if they may unintentionally undermine the protective intent of the law.
• Need for Judicial Consistency: Inconsistencies in judgments by different High Courts create uncertainty in the legal system. Ensuring consistency in interpreting the law is essential for upholding the ‘Best Interests of the Child’ and maintaining public trust in the justice system.

Role of the Supreme Court in resolving the discrepancies

• As reducing the age of consent falls under the jurisdiction of Parliament, the Supreme Court must play a crucial role in resolving the discrepancies between the laid-down law and the various interpretations by different High Courts.
• This is particularly relevant given the Supreme Court’s previous judgment in Independent Thought v. Union of India (2017) wherein it held that even sexual intercourse with a minor wife is rape

Steps to address these gaps quickly

• Analyze Cases: The Bureau of Police Research and Development should analyze cases of consensual sex, age-wise, across different states. This analysis can help the Central government make informed decisions regarding the age of consent and its potential reduction.
• Reduce Harsh Minimum Imprisonment: The minimum imprisonment terms for sexual offenses under POCSO should be re-evaluated. Instead of acting as a benefit to the accused, the punishment should act as a deterrent and ensure justice for child victims.
• Judicial Leeway in Age of Consent: Consider granting some leeway to the judiciary in interpreting consent in cases where the victim is of lower age based on the child’s understanding of consequences. This would allow for a more nuanced approach to cases involving minors.
• Uphold the Best Interest of the Child: The ‘Best Interests of the Child’ principle should be a guiding factor in all decisions related to POCSO cases. The welfare and well-being of the child victims should be the paramount consideration.
• Supreme Court Intervention: The Supreme Court must intervene promptly to address the gap between the laid down law and the different interpretations by the High Courts. Its role is crucial in ensuring consistency and uniformity in the application of the law.
• Legislative Review: The Parliament should consider reviewing the age of consent in light of the recent High Court decisions and expert analyses. Any potential reduction in the age of consent should be done thoughtfully, with the ‘Best Interests of the Child’ as the primary concern.
• Public Awareness: Launch public awareness campaigns to educate the public about the importance of protecting children from sexual offenses and the legal rights of child victims.
• Specialized Training: Provide specialized training to judges, prosecutors, and lawyers on child protection laws and the Best Interests of the Child principle to enhance their understanding of the unique needs and vulnerabilities of child victims

Striking a balance between protecting children from sexual assault and considering their understanding of consent is essential. It is imperative for the Supreme Court and the legislature to address this issue promptly to ensure the welfare and safety of children across the country.