Instead of Pocso Act provisions, employ a sensible approach in minor girls’ cases

A Pune-based girl, in her early teens, attended a “good-touch-bad-touch” sexual awareness session in her school last week. She then suddenly realised that her grandfather, father and older brother had been bad-touching her for the last five years. She is lucky her school conducted the session and she is now under the protection of the Protection of Children from Sexual Offences (Pocso) Act. Counselling and a secure environment can mend her over time. But the Pocso Act itself is causing a debate in the public sphere. The Act specifically deals with sexual offences against minor children, under 18. Of late, hundreds of cases relating to romantic relationships — where mostly minor girls and consensual sex are involved — are being filed under Pocso. Both the special Pocso courts and several High Courts are facing a tough time applying the draconian provisions of the Act for sexual offences to young or teen couples involved in romantic relationships. For instance, there is no question of bail for the accused in sexual offence cases. Or, even if the accused claims the under-aged girl gave her consent for a sexual relationship, such consent of a minor is declared no consent; the accused gets no protection under the consent clause. How can the courts apply these clauses to a romantic relationship between an adult man and minor girl who had consensual sex and for some reason the relationship falls through, and the man is charged with sexually harassing the minor or luring her away?

Even if a minor admits she consented to sex, Pocso will reject her consent. Probably, the Act is inappropriate for such a case. The courts are of late applying standards that are not as harsh as Pocso provisions. Last week, a special court gave bail to a 21-year-old man who spent 30 days in jail after a ‘love’ relationship with a minor girl went south and he was accused by the girl’s mother of kidnapping and eloping with her and having sex with her. The minor’s consent is no consent, but the special court depended on a previous order of the Bombay High Court that young or adolescent couples these days are sexually aware and their impressionable age could provoke them into having sexual relationships. Unless there is reason to suspect rape or forced sex, these cases need to be judged on different parameters and with a sensitive and sensible outlook. There are scores of such cases where courts have granted bail to the men. The Madras High Court has called for lowering the minor’s age to 16, and inserting liberal provisions in the Pocso Act itself to deal with consensual sex cases involving those over 16. Teenage attraction, infatuation with an older male and attempts to avoid conservative attitudes of parents — all these are social facts which cannot be resolved by punitive actions unless, of course, girl protection laws are violated. The executive and the legislature need to look into the matter right away.