Criminalization of Adolescent love: Critical Analysis of the Law Commission

Sanskruti Madhukar Kale

To combat the crimes of sexual exploitation against children, the Indian Parliament, in 2012, enacted Protection of Children from Sexual Offences Act[1] (“POCSO”). The POCSO act introduced several changes in the Criminal Justice System, but it also increased the Age of Consent from 16 to 18 years,[2] thus adding a sour note to the symphony. This unjustified increase has, therefore, led to criminalization of consensual adolescent relationships.[3] The Supreme Court (“SC”) had urged the Parliament[4] to look into the issue and consider reducing the age of Consent or add flexibility to the POCSO Act. Therefore, to address these ambiguities, the 283rd Law Commission Report[5] (“the Report”) was published. However, the Report has advised against tinkering with the existing age of consent, thus, is an opportunity lost in the shuffle.[6] Therefore, in this article, the author aims to critically examine the Recommendations made by the Law Commission on Age of Consent.

Background of the Issue

The initial 2010 POCSO Bill,[7] drafted by the National Commission for Protection of Child Rights (“NCPCR”), included a “close-in-age” exemption, acknowledging potential consensual activities between adolescents.[8] The 2011 Bill[9] by the Ministry of Women and Child Rights also included this provision as a proviso.[10] However, when the bill reached the Rajya Sabha, where it was referred to the Parliamentary Standing Committee (“PSC”), the “close-in-age” exceptions were removed.[11] The Committee argued that, “Once the age of the child has been specified as 18 years, then the element of consent should be treated as irrelevant up to this age.”[12] The suggestions made by the PSC were duly incorporated, consequently age of consent in India, today, stands 18 years.[13] Age of consent under Section 375 of the Indian Penal Code (“IPC”) was also amended in 2013 to bring it in consonance with the POCSO Act.[14]

Recommendations made by the Report: A critique

The echoes of adolescent love have been resonating in the corridors of power, demanding a recalibration of the existing laws, since years. The ball was in the power-holders’ court ever since the act was enacted 10 years back, however, finally, after the incarceration of hundreds of Adolescent Boys for engaging in consensual sexual activities, the Law Commission of India has dribbled the ball to serve this issue.

Overall, the Report categorically opposes any kind of tinkering with the existing age of consent.[15] To justify the same, it cites the case of State of U.P. v. Sonu Kushwaha,[16] where the Supreme Court noted that the POCSO Act was a stringent legislation with mandatory minimum punishments, and the Courts were not empowered to award lesser punishments once a case was made out under the Act.[17]

However, the Report, to some extent, does acknowledge the evils of the act. It acknowledges that there is a grey area in law on how to determine, “which child is the victim,” and “which one is the offender” in case of consensual relationships between two children. Therefore, the report has recommended a few amendments to the Act. But, a detailed perusal of the report suggests that, the recommendations are nothing but mere tokens. It is argued that the Report recommends changes for the sake of respecting the Judicial References, but those changes are practically flawed and a dollar short for the following reasons:

“Sentence reduction” not “Sentence waiver”

Firstly, is not a concealed fact that adolescents in our country often engage in consensual sexual relationships. Data from the National Family and Health Survey (NFHS) 4 (2015–16) show that 11% of girls under the Age of 15 and 39% of females under 18 have been sexually active.[18] The NFHS-5 (2019–20) data on adolescent fertility rate suggested that 49% of rural women and 27% of urban women between the ages of 15 and 19 engaged in sexual activity both within and outside of marriage.[19] Further, in our society, prohibition of sexual encounters between adolescents have significant implications, especially for tribal communities.[20] They often fall victim to such laws due to their customary child marriage practices.[21] The problem aggravates when a minor bride conceives, and her husband faces accusations under POCSO.[22] According to PLD’s study of 83 cases involving underage marriages, it was found that Parents invoked POCSO in 65% of the cases.[23] The study revealed that POCSO is exploited as a tool by disapproving parents to target their children’s relationships or elopement cases.[24] Therefore, the Law Commission was assigned with the task of addressing this very incongruity between the delineated age of consent and the grass-root reality.

The Report does recommend certain guidelines to identify cases where reduction in sentence can be permitted.[25] It also grants flexibility to the Judges to impose sentences less than the mandatory minimum of 10 years. However, it is important to note that the exception only permits “sentence reduction,” not “sentence waiver,” thus “the stigma of criminalization”[26] and the “looming fear of imprisonment” stays intact.

The Law Commission overlooked the fact that judicial discretion is often influenced by deep-seated gender stereotypes. For example, recently, the Calcutta High Court, in a case of kidnapping and sexual assault of a minor, went on to advice adolescent girls to “control sexual urges as in the eyes of the society she is the loser when she gives in to enjoy the sexual pleasure of hardly two minutes.”[27] Similarly, in August 2022, the district and sessions judge in Kozhikode, Kerala, in a molestation case, considered the attire of the woman who lodged the complaint, describing it as “revealing and provocative,” as a factor in granting anticipatory bail to the accused.[28] Therefore, in such a blinkered system, genuine concerns relating to the arbitrariness of Judicial Discretion, especially in cases involving sexual violence, should not have been ignored by the Law Commission.

Sexual relations between an Adolescent Male & Older Female

Secondly, the report fails to address scenarios, such as, when an adolescent boy under 18 years of age engages in a sexual act with a female who is 18 years or older, then what would be that Female’s liability? Because POCSO is a gender-neutral statute,[29] therefore it doesn’t distinguish between a girl and a boy, rather stresses upon the protection of “children” from sexual offences. However, the neglect gives rise to a doubt i.e., whether a Girl in the said situation would also face criminalisation or not?

Discriminatory and Sectarian Recommendations?

Thirdly, and most importantly, the recommendations carry a sectarian shade to it. Under the guidelines to exercise Judicial Discretion, the report adds a caveat[30] that for a case to be eligible to reduction of sentence, there should be “no change in the social or cultural background of the child, indicating an element of manipulation or indoctrination.” This caveat refers to inter-religious and inter-caste relations. This way, the Law Commission perpetuates a discriminatory idea that normative sexual behaviour would be treated as an exception under POCSO only if the adolescents belong to the same caste and the same religion. Such recommendations not only violate the fundamental right to personal liberty and freedom of choice but also breach the basic principle of secularism and equality. What’s more concerning is that the Law Commission has made these recommendations in complete disregard to the ground reality of our country, which suggests that a big chunk of POCSO cases in India are of a “romantic” nature and 80% of such cases are filed by disgruntled family members.[31] Therefore, out of the fear of legal repercussions due to family opposition, young couples may be deterred from pursuing relationships outside their caste or religion, thus contributing to a regressive environment controlled by social stigma. It was the Law Commission’s responsibility to recommend ways to reduce the vulnerability of adolescent lovers. However, they have come up with this dogmatic recommendation which, if implemented, would rather add to the misery of adolescent lovers, especially the ones who dare to love outside caste and religion.

Ambiguity in Terminology: Undefined “Tacit Approval” v. “Consent”

Fourthly, the Report uses a phrase “tacit approval of the child, though not consent in law.” By using this new term “Tacit approval,”[32] the Law Commission seems to replace the term “Consent.” However, it is important to note that unlike “Consent,” “Tacit approval” is not defined anywhere in the law.[33] This lack of clarity can result in inconsistent application and subjective interpretations by Law enforcement agencies and the Judiciary, hence leading to an increase in litigation, and making this entire endeavour seemingly infructuous. It may also create inconsistencies with other laws that use the term “consent,” especially in cases where multiple laws, alongside POCSO, intersect. Explanation 2 appended to section 375 of the Indian Penal Code defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.”[34] The POCSO doesn’t define “Consent” rather, it stipulates that a child is someone under the age of 18, thereby establishing the age of consent as 18 years.[35] Thus, according to POCSO, the consent of a child holds no significance, and consensual sexual activity involving adolescents is regarded in the same manner as rape. In this complex context, the Report fails to lay down any parameter to distinguish between “Tacit approval” and “Consent;” it also fails to answer questions such as, what if there is Consent but no Tacit Approval? Would that disqualify an adolescent from taking advantage of the exception clause or not?

The Report fails to recommend harmonization of other laws with POCSO

Lastly, though the Report takes into consideration factors such as marital status and pregnancy,[36] it fails to recommend changes in the Medical Termination of Pregnancy Act 1971,[37] in consonance with the guidelines issued by the Supreme Court in the case of X. v. Principal Secretary[38] failing to recommend changes in other laws creates a legal vacuum where one. Therefore, if normative sexual behaviour, though conditionally, is permitted, then pregnancy arising out of such relations and abortion of the same should also be allowed by the law.

Conclusion

Throughout the report, the Law Commission emphasises the importance of initiating a discussion about criminalization of adolescent love. It reiterates that the Law Commission will take all kinds of measures to address this ambiguity in the law, but not at the cost of the “protection of children.” However, what is troubling is, how effortlessly the Commission forgets that “Protection of Adolescents from Criminalisation” is, in itself, an integral facet of the protection of Children.

(The author is a student at the Gujarat National Law University, Jodhpur.)

[1] Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).

[2] Protection of Children from Sexual Offences Act, 2012, § 2(d), No. 32, Acts of Parliament, 2012 (India).

[3] Probhat Purkait v. State of W.B., 2023 SCC OnLine Cal 3777.

[4] https://www.livelaw.in/top-stories/cji-dy-chandrachud-urges-parliament-to-consider-concerns-about-age-of-consent-under-pocso-act-216336.

[5] https://lawcommissionofindia.nic.in/report_twentysecond/.

[6] https://www.thequint.com/opinion/law-commission-report-on-pocso-age-of-consent.

[7] Protection of Children from Sexual Offences Bill, 2010, National Commission for Protection of Child Rights. https://rajasthanjudicialacademy.nic.in/docs/studyMaterial07102020.pdf.

[8] https://prsindia.org/billtrack/the-protection-of-children-from-sexual-offences-bill-2011.

[9] https://prsindia.org/billtrack/the-protection-of-children-from-sexual-offences-bill-2011.

[10] Id.

[11] https://prsindia.org/billtrack/the-protection-of-children-from-sexual-offences-bill-2011.

[12] https://lawcommissionofindia.nic.in/report_twentysecond/.

[13] Criminal Law (Amendment) Act No. 13 of 2013 dated 03rd February, 2013.

[14] Independent Thought v. Union of India, (2017) 10 SCC 800.

[15] https://www.thehindu.com/news/national/law-commission-against-lowering-age-of-consent-under-pocso-act-suggests-guided-judicial-discretion/article67361714.ece.

[16] State of U.P. v. Sonu Kushwaha, (2023) 7 SCC 475.

[17] Id.

[18] http://rchiips.org/nfhs/pdf/NFHS4/India.pdf.

[19] https://main.mohfw.gov.in/sites/default/files/NFHS-5_Phase-II_0.pdf.