In days gone by, children were all too often viewed as property. Looking back at the last few decades, however, we have witnessed many progressive and protective laws protecting the childhood of our children and humanity at large. In the area of Child Sexual Abuse (CSA), The Protection of Children from Sexual Offences (POCSO) Act 2012 is one such landmark law enacted in India on November 14, 2012 to protect the best interest and well-being of our children. It stands out as an excellent piece of legislation as it recognises almost every known form of sexual abuse against children as a punishable offence.
Most important is that the Act is a gender neutral legislation. It defines a child as any individual below the age of 18. A reading of the statement of Objects and Reasons of POCSO Act clearly shows that it is meant to protect children from the offences of sexual abuse, sexual assault and harassment, pornography, etc, in keeping with Article 15 of the Constitution of India. Though it has been a decade since the ratification of this Act, the studies in this area are very restricted and sketchy.
However, it has been observed that a large array of cases filed under the POCSO Act seems to be those arising on the basis of the complaints/FIRs lodged by the families of adolescents and teenagers who are involved in a loving and passionate relationship with each other. The scheme of the Act clearly shows that it did not intend to bring within its scope or limits, the cases of the nature where the adolescents or teenagers involved were in a romantic/love relationship. Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an “offender and criminal” was never the objective of the POCSO Act.
One of the reasons for the mounting rate of cases being filed under POCSO could be the fact that children who are in their late adolescence and a stage of exploring their sexuality get into the act of consensual sex and invariably come under the frame work of the Juvenile Justice framework. From the legal perspective, it is clear that there is no consideration for the sexual rights of children as they are legally not in the age of consent for any form of sexual engagement till they attain the age of 18 years. Let us, however, remember that a child is like any other human being having inalienable rights. This includes their right to fall in love with a person of their choice. As adults who have gone through the phase of teenage adolescence ourselves we are all aware of how the young mind mistakes/confuses lust for love. The magic of first love for the young mind is the belief that it has come to stay for eternity and that it has no end. Trying to tell teenagers about the facts and reality of life hardly makes any dent on them when they are lost in their own world of dreams and fantasies.
Studies have shown that mandatory sentencing leads to fewer convictions and has no deterrent effect, because when judges perceive that the punishment for the offence is too harsh as in the case of POCSO, they prefer to acquit the accused, instead. After conviction, a separate hearing is conducted to award the sentence, in which aspects such as the accused being a first-time offender with potential for reformation, or being the sole bread-winner of the family, the age of the accused, family background, seriousness of the offence, etc, are considered.
The absence of the opportunity to consider such factors, and instead to prescribe a mandatory sentence as in the case of POCSO, pushes many judges in some cases towards acquitting the accused rather than allowing his young and youthful life to come to a grinding halt. Exploring one’s sexuality and engaging in sexual acts with the opposite sex are normal processes of development among adolescents aren’t they? However in India, the whole aspect of the adolescent romantic relationships is coloured by the complex interplay of socio-cultural phenomena.
In a move in the right direction, the Allahabad court last week granted bail to an accused under POCSO for impregnating a minor saying that the law didn’t intend to bring cases of romantic affairs between teenagers under its aegis.
The courts in Goa need to take note of this judgment and hence-forth look into this aspect of “Teenage Love”. It probably makes little or no sense to us as adults. But it is high time we stop looking at this phenomenon with our tinted glasses and accept the reality. It is unfortunate that many youngsters in the past have been convicted on this count and their lives torn apart because neither the court nor any of its officers were able to understand the love between two young lovers: many of whom gave birth to children as in the case decided by the Allahabad court.
The Juvenile Court in Goa which hears and passes judgment on many of such cases needs to take due notice and use the reasoning as spelt-out by the judgment of the Allahabad High Court. Counsellors, NGOs and defence counsels also need to guide the courts in the right direction keeping in mind ‘the best interest of the child’. The lesson to be learnt from the recent judgment of the Allahabad Court is all about addressing Child Sexual Abuse (CSA) without punishing teenage lovers which in effect can be as lasting and mature as any adult love can be. Teenage relationships may have unique challenges, but with commitment and communication they can stand the test of time just like any other relationship.
(The writer is a social scientist and a senior practising criminal lawyer).
