Latest news with #NipunSaxena
The Hindu
3 days ago
- Politics
- The Hindu
Protection against misuse: on POCSO Act, adolescent sex
The key objective of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is the protection of children, but over the past few years, courts around the country and rights activists have called for some exemptions. Noticing a trend that adolescents, above 15 years but under 18, in voluntary relationships and having consensual sex were often being persecuted, the courts sought a review. In that backdrop, senior advocate Indira Jaising's written submission to the Supreme Court that consensual sex between teenagers aged 16-18 years must not be criminalised is a welcome move. She was appointed amicus curiae and her submissions are part of a petition filed by advocate Nipun Saxena. Her brief challenged the designation of 18 years as the age of consent. She said the only solution lies in declaring that sex between consenting adolescents between the age of 16, an almost universal age of sexual maturity, and 18, is not a form of 'abuse'. Ms. Jaising called for this exception to be read into the POCSO Act and Section 63 (sexual offences), of the Bharatiya Nyaya Sanhita (BNS). 'Such an exception would preserve the protective intent of the statute while preventing its misuse against adolescent relationships that are not exploitative in nature,' she said. In a 2023 report, the Law Commission had said that it was against changing the age of consent. It advised 'guided judicial discretion' instead, while sentencing in cases that involve children between 16 and 18 years in a voluntary, consensual relationship. Under the POCSO Act and under several provisions of the Indian Penal Code and the BNS, whoever commits a penetrative sexual assault on a child — who is anyone below 18 years — can face stringent punishment under Section 6 of the POCSO Act, Section 9 of the Prohibition of Child Marriage Act, 2006, and provisions of the IPC and BNS. A 16-year-old is considered a 'child' under Section 2(d) of the POCSO Act and hence her consent does not matter. But caveats have to be put in place so that the broad intent of the law is adhered to, as the Madras High Court suggested in 2021, in Vijayalakshmi vs State Rep. The High Court said the age difference in consensual relationships should not be more than five years to ensure that a girl of an impressionable age is not taken advantage of by an older person. Educating adolescents about the law on sexual offences and its consequences is a must too. Criminalising normal adolescent behaviour is not the way to protect against non-consensual, exploitative sexual offences.
Deccan Herald
7 days ago
- Politics
- Deccan Herald
Supreme Court urged to bring down age of consent, plea says most plaints filed by parents
Jaising, who is assisting the top court in 'Nipun Saxena v. Union of India' case, has filled her written submissions challenging the blanket criminalisation of sexual activity involving adolescents aged 16 to 18 under the Protection of Children from Sexual Offences Act (POCSO), 2012 and Section 375 of IPC.
Time of India
7 days ago
- Politics
- Time of India
Bring down age of consent from 18 to 16 yrs, SC told
Live Events (You can now subscribe to our (You can now subscribe to our Economic Times WhatsApp channel The Supreme Court has been urged by amicus curiae and senior advocate Indira Jaising to read down the statutory age of consent from 18 to 16 who is assisting the top court in "Nipun Saxena v. Union of India" case, has filled her written submissions challenging the blanket criminalisation of sexual activity involving adolescents aged 16 to 18 under the Protection of Children from Sexual Offences Act ( POCSO ), 2012 and Section 375 of has argued the current law criminalises consensual romantic relationships among adolescents and violates their constitutional said the legal framework wrongly equates consensual relationships between adolescents with abuse, ignoring their autonomy, maturity, and capacity to consent."There is no rational reason or empirical data to justify the increase in the age of consent from 16 to 18 years," Jaising submitted, noting that the age had remained at 16 for over 70 years until it was raised by the Criminal Law (Amendment) Act, pointed out the increase came without debate and went against the Justice Verma Committee 's recommendation to retain 16 as the age of amicus curiae submitted adolescents today attain puberty earlier and are capable of forming romantic and sexual relationships of their and social data, including findings from the National Family Health Survey, indicate sexual activity among teenagers is not uncommon, she cited a 180 per cent rise in prosecutions under POCSO involving minors aged 16-18 between 2017 and 2021."Most complaints are filed by parents, often against the girl's will, in cases involving inter-caste or inter-faith relationships," she said, cautioning criminalising consensual sex "forces young couples into hiding, marriage or legal trouble, instead of encouraging open dialogue and education".To address this, she urged the court to read into the law a "close-in-age" exception, which would exempt consensual sexual acts between adolescents aged 16 to 18 from prosecution under POCSO and IPC."Criminalising sex between teenagers is arbitrary, unconstitutional, and against the best interests of children," she senior lawyer referred to international norms and Indian jurisprudence to argue that legal capacity is not strictly the UK's Gillick ruling and India's own Puttaswamy privacy judgment, she said "autonomy in decision-making is central to the right to privacy" and must extend to adolescents capable of informed sexual submission also pointed to trends in various high courts, including Bombay, Madras, and Meghalaya, where judges have expressed disapproval over the automatic prosecution of adolescent boys under courts have stressed not all sexual acts involving minors are coercive, and the law should distinguish between abuse and consensual concluded urging the top court to declare consensual sex between adolescents aged between 16 and 18 was not a form of abuse and must be excluded from the purview of POCSO and rape called for a review of the mandatory reporting obligations under Section 19 of POCSO, which deter adolescents from seeking safe medical care. Sexual autonomy is part of human dignity," she said, "and denying adolescents the ability to make informed choices about their own bodies was a violation of Articles 14, 15, 19 and 21 of the Constitution."
Indian Express
05-05-2025
- Politics
- Indian Express
Opinion Adolescence, love and POCSO: Intimacy must not be criminalised
As far as cautionary tales about unintended consequences in criminal justice go, the Protection of Children from Sexual Offences (POCSO) Act, 2012 has its share to offer. The primary purpose of the Act is to prevent and punish sexual exploitation and sexual abuse of children. But its provisions are so rigid that adolescents or teenagers consensually engaged in romantic sexual relationships are themselves not spared severe punishment. On top of criminalising such children, the law also criminalises 'any person' (therefore, potentially, other children too) who knows about their 'crime' and yet fails to report it to the police. Although many, including courts and experts, believe that bringing an arguably vast swathe of the population within the penal ambit could never have been the intention of lawmakers, the law on consensual cases and mandatory reporting remains unchanged. Amid concerns surrounding this status quo, the Supreme Court is reportedly going to take up the matter of mandatory reporting of even voluntary sexual activity (if either or both parties are under 18) on May 8. According to reports, the Court in Nipun Saxena vs Union of India has recognised the issue as 'serious and relevant' and agreed to hold a detailed hearing on it. This raises hopes for a more progressive and principled approach to consensual POCSO cases than has been possible so far. When dealing with alleged sexual offences arising out of adolescent love affairs, different high courts have naturally found it unconscionable in several instances not to provide relief to the children concerned by dismissing or quashing cases against them. While this shields those children from ongoing criminalisation, it can neither undo the damage already done nor protect them from future consequences of contact with the criminal justice system. Moreover, it can be argued as a counterfactual that more than the courts' liberal stance in cases that have made their way to them, many adolescents in positive intimate relationships might possibly have been saved by the law's non-enforcement against them by the police. One need only imagine how grotesquely the number of cases could soar if the police were to prioritise detecting these relationships and filing criminal cases. Similarly, a concerted campaign by the police to book a wide range of individuals — including guardians and medical professionals whose knowledge about such relationships may come from providing vital care to the parties — for the offence of failure to report could again have brought the situation to a head. In other words, rather counterintuitively, non-implementation of the contentious provisions by the police might actually have prevented the issue from boiling over. That said, the problem clearly calls for a more sustainable and well-considered response. Therefore, the Supreme Court's engagement with it assumes considerable significance. Going forward, much will depend on how the problem is constructed, framed, and defined. There are at least three paths to consider. The first is to take a solution-oriented, but hands-off approach. From this perspective, consensual POCSO cases and their mandatory reporting stem from overcriminalisation — the excessive use of criminal law to regulate adolescent behaviour. Considering that love affairs among adolescents are commonplace and criminalising them appears more detrimental than beneficial, this approach favours decriminalisation and non-intervention. The second way is also solution-oriented and pro-decriminalisation, but in contrast to the first, it adopts an interventionist approach. It advocates replacing blunt criminal justice/penal responses with individualised ones that focus on education, counselling, and behaviour modification. The third way seeks to frame the issue in terms of adolescents' development, rights, and autonomy. It is underpinned by the understanding that adolescence constitutes a critically significant developmental stage marking the transition from childhood to adulthood. Adolescents experience an array of physical, psychological, and emotional changes. The inclination to explore, experiment, and exercise independence is regarded as integral to their developmental process. Many experts think that romantic relationships among adolescents are both natural and advantageous for their self-esteem and general well-being. In light of these considerations, the third perspective suggests acknowledging respectful sexual activity among adolescents as part and parcel of their right to healthy development. A judgment of the Delhi High Court earlier this year exemplifies the rights-based approach to the issue. In State vs Hitesh, the Court observed, '…societal and legal views on adolescent love should emphasise the rights of young individuals to engage in romantic relationships that are free from exploitation and abuse. Love is a fundamental human experience, and adolescents have the right to form emotional connections.' Through this lens, the right of children to develop deep emotional bonds is complementary to the right the POCSO Act recognises, namely, the right against sexual abuse and exploitation. In other words, the empowerment of adolescents should be seen as essential to their protection. One of the most talked-about Netflix series of 2025, Adolescence, explores themes that reflect the necessity of a nuanced and well-considered approach to adolescent love, desire, and vulnerability in a digitally mediated world. The show centres on 13-year-old Jamie, who was arrested for the suspected murder of his classmate Katie Leonard. The investigation uncovers how Jamie had descended into emotional turmoil with his exposure to social isolation, toxic masculinity, and online radicalisation. It also delivers a critique of parental care and the school system for not being sufficiently empathetic and responsive. A key lesson from the show is the need for open and supportive conversations about sex, relationships, and consent. Pathologising or criminalising adolescent desire is clearly not advisable. The problem with the first way is that while decriminalisation of consensual and non-exploitative sexual activity of adolescents will be good, it will be inadequate. The issue with the second way is that interventions such as counselling, although well-meaning and benign in appearance, can end up pathologising behaviours that are actually normal. On the other hand, the third way has the potential to foster a rights-based and healthy environment for adolescents while also addressing overcriminalisation.
