How has SC deviated from the POCSO Act in a recent judgment?
The story so far: On May 23, the Supreme Court (SC) declined to impose a sentence on a man convicted under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), noting that the victim did not view the incident as a crime and had suffered more from the legal fallout.
Why was POCSO enacted?
Enacted in December 2012, the POCSO Act criminalises both penetrative and non-penetrative sexual assault, sexual harassment, and child pornography. A gender-neutral law, POCSO deems all minors under 18 incapable of 'consent', and mandates child-friendly procedures like special courts, in-camera trials, and video-recorded testimonies. With strict penalties, a presumption of guilt on the accused, and time-bound trials, the Act aims to fill critical legislative voids and deliver swift, victim-centric justice.
What is the case?
The case involved a 13-year-old girl from rural West Bengal, reported missing by her mother in May 2018, who was later found to have married a 25-year-old man (accused). Despite her mother's rescue efforts, she stayed with him and later gave birth to a daughter. Based on an FIR by her mother, a special judge in September 2022 convicted the accused under POCSO and IPC Sections 363 (kidnapping), 366 (kidnapping, abducting or inducing woman to compel her marriage etc), 376 (2)(n) (repeated rape on same woman) and 376 (3) (rape on woman under 16 years), sentencing him to 20 years imprisonment. However, the Calcutta HC overturned the conviction by invoking its inherent powers under Section 482 of the Code of Criminal Procedure, despite POCSO's non-recognition of 'consensual relationships' with minors. It further recommended legislative amendments to exclude such relationships from POCSO's ambit. The judgment veered into a discourse on 'adolescent sexuality', attributing it to climate change, food habits, early puberty, and a 'taboo-free atmosphere' influenced by social media and pornography. This unscientific reasoning overlooked social factors and reinforced outdated gender norms.
What did the SC state?
On August 20, 2024, the top court in a suo motu proceeding set aside the HC's ruling, reaffirming that POCSO does not recognise 'consensual sex' with minors and its objective must not be diluted. Stressing that judgments must remain concise and law-focused, it criticised the HC for straying from 'legal reasoning' into personal opinions and social commentary. However, sentencing was deferred pending a report from a three-member expert panel tasked with meeting the victim and submitting findings. The expert committee found that the victim, now living in poverty and a temporary shelter, remains committed to the accused and faces significant hardship in tackling the police, society and legal system to secure his release. It flagged the inadequate implementation of the POCSO Act as a 'collective failure' and recommended keeping the family unit intact for the child's welfare, alongside providing financial, legal, and educational support. 'The society judged her, the legal system failed her, and her own family abandoned her', the SC observed, citing the report. Exercising Article 142 (extraordinary jurisdiction), it withheld sentencing and directed the West Bengal government to ensure her welfare and rehabilitation.
What next?
The unusual deviation from the child protection law in this case must not set a precedent, as the judgment emphasises. Any such exception risks weakening the core intent of the POCSO Act to protect minors from sexual exploitation. Opening the door to exceptions could lead to widespread misuse, with perpetrators hiding behind the guise of 'family protection' to exploit vulnerable girls. India urgently needs comprehensive sex education and a stigma-free curriculum.
Kartikey Singh is a lawyer based in Delhi.
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