A recent ruling that consensual sex with a girl under 18 does not constitute an offence under the POCSO Act has opened up a long-simmering demand for a rethink on this Act. SHAlINI SAKSENA talks to experts in a bid to fathom what’s right and what’s wrong in this under-18 segment
February 26, 2013 (Delhi):A 15-year-old girl elopes with her 22-year-old boyfriend. The duo reaches the boy’s village near Kolkata, ties the knot and consummates the marriage. The girl’s mother lodges a missing complaint on March 5. A team is sent to Kolkata and brings back the couple. The boy is booked for kidnapping and ‘rape’ of a minor under the Protection Of Children From Sexual Offences (POCSO) Act, 2012.
Verdict: Accused acquitted by a ruling that the minor, on her own will, accompanied him and an obstacle should not be put in their happy married life.
Rejecting a plea by the Delhi Police and the Delhi Commission for Women that POCSO Act prohibits minors from having any kind of sexual relationship, Additional Sessions judge Dharmesh Sharma said: “I am afraid if that interpretation is allowed, it would mean that the human body of every individual under 18 years is the property of the State and no individual below 18 years can be allowed to have pleasures associated with one’s body. In my opinion, it would neither serve the object of present enactment, nor the purpose of criminal law to hold the accused guilty on the ground that he had sexual intercourse with a girl below 18 years.” The judge also said that it would not be good for the girl’s health if her husband (he married the girl) is sent to jail.
The ruling has opened up a debate on what should be the right age for a “minor” to exercise her sexual rights. While some lawmakers believe that consensual or not, sex with a person deemed minor under the law tantamounts to rape, many others say that the POCSO Act, 2012, which deals with such offences is misplaced. According to Sujato Bhadra, professor and human rights activist from West Bengal, even though this Act’s provisions need to be studied, the above-mentioned judgement is paradoxical to the Act.
“The ruling is contrary to the POCSO Act. The fact that the charges were filed under POCSO Act means that the girl is not a major. Being a minor, she has no right over her body and, therefore, the issue of giving her consent doesn’t arise,” Salim Khan, the case’s public prosecutor, insists. Child right activists argue that the ruling has potential to impact other crime against women cases. They stress that it might be used by the accused’s lawyer to seek his client’s acquittal or, worse still, give him a reason to ‘buy’ the victim’s consent. “I told the judge that it was not keeping in tune with the provisions of the Act under which the case had been filed. On one hand, the nation is demanding stricter laws to prevent crime against women and minors, on the other, a ruling says it is okay for a minor to have sex. The Act was made to protect minors and can’t be disregarded,” Khan says.
Ask him why the accused was not booked simultaneously for violation of the Child Marriage Act and he says “when there is a specific Act is available, general Acts are usually not taken into account”. As Prof Bhadra points out, law deems that a boy below 21 and a girl below 18 can’t get married. “But the judgement says that a man having physical relations with a minor doesn’t amount to rape if it is consensual. How is it that a girl is not allowed to marry till she is 18 but can have sex at 15IJ Something needs to change,” he says.
According to the Ministry of Women and Child Development which has collaborated with global human rights body Breakthrough for a campaign titled NationAgainst Early Marriage, 47 per cent Indian girls are married off before the age of 18. The study also says that of the 30 million underage marriages in South Asia, one-third happen in India — 10 million! Prof Bhadra is quick to point out the need to plug this dichotomy in the system. According to this study, it’s not just the rural belt that has been openly defying the law but also its urban counterparts where the violations are almost as high. So, while the law must be upheld and enforced, the reality should also be taken into account, he adds, explaining why the judge may have felt the need to not treat the elopement as rape and kidnapping.
Child rights groups say that while the wide gap between law and reality needs to be bridged, there is also an urgent need for a proper awareness mechanism among the young. “Efforts should be made to create awareness among the young about sex. School workshops are must. Amendments in law would be a major step in the right direction. Though it’s tricky to determine at what age a girl is mature enough to give consent for sex, it is the evidence in each case that needs to be considered carefully. We have been demanding changes in law to ensure that the guilty get punished and an innocent walk free,” All India Democratic Women’s Association general secretary Sudha Sundararaman says.
Strangely, however, the more the number of laws on crime against women, the more the loopholes. “Too much rigidity in applying an Act can be exploited. The solution lies in looking at each case individually. For instance, one can’t prevent any court in the country from citing the judgement given by the Delhi court. That is what a lawyer will do to save his client. It is, however, for that court to see whether the case in hand has any similarity with the case being cited. If not, it must ignore the parallels drawn and give its ruling on the evidence presented,” Prof Bhadra states.
Considering that almost 99 per cent criminal cases (especially rape) are not fought on merit and that there are umpteen cases where the ‘other lawyer’ and witnesses are bought or coerced into giving a weak statement in court, the ‘consensual sex not amounting to rape’ has, indeed, opened a Pandora’s box. Advocates of the Act point out how lower courts seldom go against the provisions of law. The popular thinking is that it wouldn’t make sense for parliamentarians to draft a law then. Significantly, India has the largest child population in the world with 42 per cent below 18. And sexual crime against children is on the rise. In 2013 alone, 313 minor rapes have been recorded.
So is it correct to wonder if this sort of a ruling has potential to be misusedIJ “Not at all,” says Supreme Court advocate Ml Sharma. “One has to see the intention. We see so many cases where women levy false charges of rape. One has to understand that it is not only the woman whose reputation is at stake. A false allegation can ruin a man’s life too,” Sharma says, citing one case that has stayed in his memory. “The woman had falsely alleged that the man had fondled her in a train whereas the truth was that she cried foul after being asked to get up from the accused’s duly reserved seat. It took the innocent man six long years and several court appearances to clear his name. The so-called ‘victim’ never ever came to court to testify”, Sharma recalls. Despite the fact that there are many cases where the man is implicated wrongly, it doesn’t take away the fact that over 53 per cent minors surveyed in 2007 said that they had experienced one or more forms of sexual abuse.
“The Act says that a girl below 18 can’t give her consent, irrespective of what the circumstances are. Before this Act came in 2012, the set age was 16 years. The raise was implemented after much deliberation. If a case has been filed under the POCSO Act, it automatically means that sexual assault took place,” inspector SS Malhan, Special Police Unit for Women and Children, argues.
But Sharma has a different take on the provisions of the POCSO Act which he feels are misplaced. “How can one prove a negativeIJ It is the positive that is easy to prove. The Act says that for the more heinous offences of penetrative sexual assault, aggravated penetrative sexual assault, sexual assault and aggravated sexual assault, the burden of proof is shifted on the accused. How should the accused prove otherwise,” he questions. While the debate on this issue is open, experts like Prof Bhadra have a solution. They say that given the fact that adolescents are maturing faster, it is vital for the State to rethink before determining the age of consent.
“There is no denying that many false cases are filed. There is also no denying that many youth run away from home and it is the parents who file charges of kidnapping and sexual abuse. But should that be the caseIJ A girl who attains puberty has a mind of her own. Neither her parents, nor the State can impose their will on her. If she stands in court and says she was not abused, one will have to believe her statement,” Prof Bhadra says. Malhan, however, dissents. The question of a 15-year-old giving her consent in cases where she has run away from home, married the boy and lived with him as a couple doesn’t arise. In fact, so strict are the provisions of the Act that a failure to report such a crime — by parents, neighbours, friends or relatives — is also punishable with an imprisonment up to six months. As is the case where a police officer refuses to register such a case. This has been done so that no crime against a minor goes unreported,” he explains.
Some activists say that the age gap between the minor and the accused needs to be also kept in mind while giving a verdict. If the difference is slim and the girl says she gave her consent and evidence also points to the same, given the fact that there was no blackmail or threat involved, a ruling should be given accordingly. However, if the age difference is more, say the girl is 10 and the man 35 or so, there is no question of not taking the Act into account. While lawyers and activists say that the provisions under the POCSO Act need to be seen in a wider spectrum and each case needs to be individually examined before a judgement is given, Malhan says that any criminal offence against a minor should be universally punishable. “If the person gets away by saying that the girl gave her consent, why make the ActIJ,” he asks.
“We have filed an appeal in High Court and waiting for its acceptance. But I am positive that a ruling in our favour will be given which will send a strong message that one can’t get away with a crime against a minor by saying it was ‘consensual’,” Khan says.
How strict is the POCSO Act, 2012
> At present, sexual offences are covered under different sections of the IPC.
> The Protection of Children from Sexual Offences (POCSO) Act 2012 considers any person below the age of 18 a child and provides protection to him/her from sexual assault, sexual harassment and pornography.
> The Act provides stringent punishments, graded as per the gravity of the offence. The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for a fine which is to be decided by the court.
> The Act incorporates child-friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include:
> Recording the statement of the child at her/his residence or at the place of his/her choice, preferably by a woman police officer not below the rank of sub-inspector. Evidence has to be recorded within 30 days
> No child should be detained at the police station in the night.
> Police officer should not be in uniform while recording the minor’s statement.
> The statement has to be made by the child and not anyone else on his/her behalf.
> Assistance of an interpreter or translator or an expert as per the need of the child.
> Assistance of special educator or any person familiar with the manner of communication of the child in case a child is disabled
> Medical examination of the child be conducted in the presence of the parent or any other person in whom the child has trust.
> In case the victim is a girl child, the medical examination be conducted by a woman doctor.
> Frequent breaks for the child during trial
> Child not to be called repeatedly to testify
> No aggressive questioning or character assassination of the child.
> In-camera trial of cases
> For the more heinous offences of penetrative sexual assault, aggravated penetrative sexual assault, sexual assault and aggravated sexual assault, the burden of proof is on the accused. This provision has been made keeping in view the vulnerability of children.
> The Bill which remained pending for a long time is a necessity in a country where 40 per cent of the population is below the age of 18. Also, in the absence of stringent laws against Child Sexual Abuse, over 53 per cent children surveyed in 2007 stated that they had experienced one or more forms of sexual abuse
> Punishments for offences covered in the Act are: Penetrative Sexual Assault (Section 3): Not less than seven years which may extend to imprisonment for life, and fine (Section 4). Aggravated Penetrative Sexual Assault (Section 5): Not less than 10 years which may extend to imprisonment for life, and fine (Section 6). Sexual Assault (Section 7): Not less than three years which may extend to five years, and fine (Section 8). Aggravated Sexual Assault (Section 9): Not less than five years which may extend to seven years, and fine (Section 10). Sexual Harassment of the Child (Section 11): Three years and fine (Section 12). Use of Child for Pornographic Purposes (Section 13): Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1).