2 days ago
Should teen sex be a crime? Indian woman lawyer mounts challenge
Ms Jaising argues that judicial discretion at sentencing isn't enough, as the accused still faces lengthy investigations and trials.
India's judicial system is infamously slow with millions of cases pending across all court levels. A research paper by India Child Protection Fund found that as of January 2023, nearly 250,000 Pocso cases were pending in special courts set up to try these cases.
"The process is the punishment for many," Ms Jaising notes.
"A case-by-case approach leaving it to the discretion of judges is also not the best solution as it can result in uneven results and does not take into account the possibility of bias," she adds.
She urges the court to add a "close-in-age exception" for consensual sex between 16- and 18-year-olds in Pocso and related laws. This "close-in-age exception" would prevent consensual acts between peers in that age group from being treated as crimes.
Lawyer and child rights activist Bhuwan Ribhu warns that a blanket exception could be misused in cases of kidnapping, trafficking, and child marriage. He advocates judicial discretion paired with a justice system overhaul.
"We need faster processes so that cases are disposed off in a time-bound manner. We also need better rehabilitation facilities and compensation for victims," he says.
Enakshi Ganguly, co-founder of HAQ: Centre for Child Rights, however, agrees with Ms Jaising.
"We can't shy away from making changes because we're afraid of the law being misused," she says, adding that Ms Jaising's argument is not new as over the years, many activists and experts have made similar recommendations.
"Laws need to keep pace with changes in society if they are to remain effective and relevant," she says.
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