Adolescence, consent & the grey zone for Pocso
Indian law puts the age of consent at 18. This means that sex with a girl below the age of 18, even if she consents, amounts to rape under the stringent Protection of Children from Sexual Offences (Pocso) law.
The law does not recognise the relationship between the 14-year-old girl and the 25-year-old man. In a trial court, the girl told the judge she loved the man and wanted to live with him. Sorry, said the judge, and sentenced him to 20 years in prison. The man was able to get bail and appealed before the Calcutta High Court (HC).
In October 2023, the HC acquitted him but not before a bizarre digression into adolescent sexual urges and advice to young women everywhere to 'control sexual urges as in the eyes of the society she is the looser [sic] when she gives in to enjoy the sexual pleasure of hardly two minutes'. Steeped in patriarchy, stereotypes and outdated notions of chastity, the judge's remarks led to considerable outrage — and the attention of the Supreme Court.
Pocso was intended to protect adolescents and children. But the increasing criminalisation of consensual teenage sexual activity has become a problem in a country where every fifth Indian is an adolescent. A five-state study by the Centre for Child and the Law at the National Law School found that in 20% of Pocso cases, the victim said she was in a consensual relationship, or marriage, with the accused.
Who files these cases? In one third of rape cases being tried in Delhi and Mumbai in 2013, it was the parents of daughters who had filed complaints — maybe her boyfriend was of a different caste or faith or maybe they were just upset at her exercise of agency. This desire for control extends to khap panchayats and even elected leaders who have said parental consent should be mandatory for love marriages.
The irony of weaponising a law intended to protect adolescent girls to control them is evident. 'This was a classic Pocso case,' says Madhavi Divan, amicus curiae in the matter. 'But the truth is more complicated. The girl is very sure of her choices and determined to protect her small family.'
One solution to prevent the abuse of Pocso could be a 'Romeo and Juliet' clause adopted this year in the UK that exempts consensual teenage sex from mandatory reporting of child sexual abuse. The clause is intended to provide some discretion in limited situations to avoid 'unintentional consequences'. But a more long-term solution suggested by Divan is to have a national sex education policy so that adolescents are made aware of the consequences of a sexual relationship. The Supreme Court has asked the Union government to consider devising such a policy.
In a country where 22% of female adolescents are married as children, sex education remains a red flag. A Unesco report found that 71% of youth aged between 13 and 30 in 17 states said they had not been taught about sexuality by either teachers or parents. The Supreme Court has upheld the conviction of the man for sexually assaulting a minor girl in 2018 but refused to sentence him, noting that the victim would be the 'worst sufferer' if he was to be jailed again.
The girl, meanwhile, told the court she wants to complete her education and get on with her life.
Namita Bhandare writes on gender. The views expressed are personal
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