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EDITORIAL ANALYSIS : Criminalizing consensual relationships

 

Source: The Hindu

  • Prelims: POCSO, National Crime Record Bureau etc
  • Mains GS Paper I and II: Vulnerable sections of society, Laws, institutions and bodies constituted for the protection and betterment of vulnerable sections of society etc

 

ARTICLE HIGHLIGHTS

  • The National Family Health Surveys indicate that a significant proportion of Indian teenagers are sexually active.
    • India is home to the largest adolescent population in the world.

 

INSIGHTS ON THE ISSUE

Context

POCSO Act:

  • The Union Ministry of Women and Child Development led the introduction of the POCSO Act in 2012.
  • The Act was designed to protect children from sexual assault, sexual harassment and pornography
  • Special courts: Provide for the establishment of Special Courts for the trial of such offenses.
  • Amendment: The Act was amended in 2019 for enhancing the punishments for specific offenses in order to deter abusers and ensure a dignified childhood.

 

Key Features of the Act:

 

Misuse of POCSO:

  • Enfold Proactive Health Trust(special courts in Assam, Maharashtra and West Bengal-2016-20):
    • Romantic cases(where the relationship was consensual, according to the girls, their family members, or the court): It constituted 3(twenty four point three)% of the total cases registered and disposed under the Protection of Children from Sexual Offences (POCSO) Act.
  • Unintended effect: Criminal prosecution and the deprivation of liberty of young people in consensual relationships.
  • The law is also used by parents of adolescent girls to curtail sexual expression and “safeguard family honour”.
  • Girls as victims: The law casts adolescent girls as “victims”, thus rendering them voiceless.
  • Girls are institutionalized in children’s homes when they refuse to return to their parents.
  • Adolescent boys are by default treated as children in conflict with the law and can even be tried as adults.
  • The penal approach also impedes adolescents’ right to barrier-free access to sexual and reproductive health services and information recognised under the Rashtriya Kishor Swasthya Karyakram.
  • The mandatory reporting obligation under the POCSO Act and the fear of the partner being reported to the police deters girls from availing themselves of medical services and pushes them towards unsafe abortions.

 

Impact of Criminal investigation and trial and inquiry under the child protection system:

  • Adverse impact on the adolescents’ development, education, employment, self-esteem, social reputation, and family life.
  • Long-term consequences of a conviction for statutory rape:
    • Incarceration
    • inclusion in the sex offenders registry.

 

Issues related to Child Sexual Abuse:

  • Multi-layered Problem: impacts children’s physical safety, mental health, well-being and behavioral aspects.
  • Amplification Due to Digital Technologies: New forms of child abuse like online bullying, harassment and Child Pornography
  • Ineffective Legislaton:POCSO Act has failed to protect child from sexual abuse.
  • The inclusion of consensual and non-exploitative acts involving adolescents: It detracts from the purpose of the POCSO Act.
    • It diverts time and resources from the investigation and trial of actual cases of sexual violence and exploitation.

 

Statistics of POCSO:

  • According to Crime in India, 2021: 92.6(ninety two point six)% of cases under the POCSO Act were pending disposal.
  • Abnormally high acquittal rates (8(ninety three point eight% in romantic cases) and girl did not say anything incriminating against the accused in 81.5(eighty one point five)% of the cases.
  • In 46.5(forty six Point five)% of the cases: The victims were married to the accused.
    • The acquittal rate in these cases was 1(ninety eight point one)%.

 

Judicial stand:

  • High courts around country: Recognised that adolescent relationships are normal and criminalisation of such acts affects both parties
  • Vijayalakshmi v. State Rep. (2021): High Court cited said that “adolescent romance is an important developmental marker for adolescents’ self-identity, functioning and capacity for intimacy”.

 

UN stand(The United Nations Committee on the Rights of the Child (CRC) in General Comment No. 20:

  • It urged states to balance protection of children from sexual exploitation and abuse with respect for their evolving autonomy.
  • States should avoid criminalizing adolescents of similar ages for factually consensual and non-exploitative sexual activity.”
  • In 2019, it urged states to remove status offences: which criminalise adolescents who engage in consensual sexual acts with one another.

 

Related Constitutional Provisions:

  • Article 21: Every child the right to live with dignity the right to personal liberty and the right to privacy
  • Article 14: the right to equality
  • Article 15: right against discrimination
  • Article 23 & 24: right against exploitation
  • Article 21A: Right to free and compulsory elementary education for all children in the 6-14 year age.
  • Article 39(f): Obligation on the State to ensure that:
    • Children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity
    • Childhood and youth are protected against exploitation and against moral and material abandonment.

  

Way Forward

  • Blanket criminalisation of consensual sexual acts among or with adolescents: It is in gross oversight of their sexual development, bodily integrity and autonomy, and violates their right to life, privacy, and dignity.
  • Comprehensive sexuality education is needed to bridge knowledge gaps, build positive skills and attitudes so as to enable adolescents to make informed decisions and navigate through interpersonal relationships, while also realizing the importance of their health and dignity.
  • Equal efforts need to be directed towards imparting knowledge, skills and attitudes to vulnerable groups such as children with disabilities or those out of schools.
  • An amendment to the POCSO Act and the Indian Penal Code to decriminalize consensual acts involving adolescents above 16 years.
    • ensuring that those above 16 years and below 18 years are protected against non-consensual acts.
  • A provision recognising consent by those above 16 years may be considered: criminalizing acts against them if it is against their will, without their consent, or where their consent has been obtained through fear of death or hurt, intoxication, or if the accused is in a position of authority.
  • Law enforcement agencies, child welfare committees and juvenile justice boards: They may consider exercising the discretion available to them under existing provisions in the best interest of children, so as to avoid/minimize the harm caused by arrest, apprehension, and institutionalization of adolescents in consensual cases.

 

QUESTION FOR PRACTICE

Q. Examine the main provisions of the National Child Policy and throw light on the status of its implementation.(UPSC 2016) (200 WORDS, 10 MARKS)