A 2020 commentary on the Indian website Jurist News, gives an in-depth picture of India’s Protection of Children from Sexual Offences Act (POCSO Act), 2012, what it was intended to do, and some of the problems it has raised. The law’s aim is to protect children from sexual offences, but wide-ranging problems and barriers have arisen in terms of what it does not cover and also in its implementation, which have a negative effect on adolescents. Not being able to access safe and legal abortion services is one of these problems.
The act was specifically formulated to deal with offences including child sexual abuse, sexual assault and sexual harassment, child pornography, and safeguarding the interest and well-being of children. Its 46 provisions increased the scope of reporting offences against children, which were not earlier covered under the Indian Penal Code (IPC). This expanded the criminal penalty for aggravated penetrative sexual assault to include punishment for abuse by a person in a position of trust or authority, including public servants, police, armed forces, and management or staff of an educational or religious institution.
The act also defines the procedure for reporting cases, including a provision for punishment for failure to report a case or a false complaint. It provided procedures for recording of the statement of a child by the police and court, specifically requiring that it should be done in a child-friendly manner, and by the established special courts. It also sets out a child-friendly procedure regarding the recording of evidence, investigation and trial of offences, establishment of special courts and speedy trial of cases. The aim of the act is to provide protection to the child at every stage of the judicial process. It sets a burden of proof of “guilty until proven innocent” rather than the general rule of “innocent until proven guilty”. Simultaneously, in order to prevent misuse of the law, the law contains punishments for false complaints and false information with malicious intent.
Problems arising from the POCSO Act re consensual sex
India’s National Family Health Survey (2019–21) found that 10% of women first had sex before age 15 and 39% first had sex before age 18.
The POCSO Act changed consensual sex under the Indian Penal Code. The age of consent has been raised from 16 years of age to 18 years of age. This means that any person (including a child) can be prosecuted for engaging in a sexual act with a child irrespective of whether the latter consented. Additionally, A husband/wife can be prosecuted for engaging in a sexual act with their spouse under 18 years of age. The Act does not recognize any consensual sexual acts among children or between a child and an adult.
Importantly, it does not leave any possibility of consent given by persons under 18. This would mean that if a 17-year-old boy or girl had a 19-year-old sexual partner, the partner would be liable to be booked under the provisions of the POCSO Act. The Act also does not provide any clarity on what happens when two minors engage in any kind of sexual activity. Technically, they are both Children in Need of Care and Protection (CNCP) and Children in Conflict with Law (CCLs). In practice though, the police declare girls to be CNCPs and boys to be CCLs. There are other problematic gender-related issues too. Similar to the law of rape under the IPC, the pronoun used for the accused is “he”, thus, only a male can be booked for the offences under the relevant provisions of the POCSO Act. Though, unlike rape, a victim under the POCSO Act can be any child irrespective of the gender, the accused still can only be a male and females are again given a protective shield, for reasons unknown. Saying that females do not subject children to forceful sexual assault is untrue.
The Jurist News article continues in great depth to describe other pitfalls of the POCSO Act. For example, the Act prescribes for special courts to be created to handle trials, each of which should be completed within one year. This has consequences if, for example, there is an unwanted pregnancy involved.
To study the problems of implementing the Act as related to access to abortion, the Center for Reproductive Rights partnered with the Law and Marginalisation Clinic at the Centre for Justice, Law and Society (CJLS) at Jindal Global Law School; CommonHealth; YP Foundation; and Hidden Pockets to develop a factsheet. The factsheet maps the laws governing abortion in India—including the original Medical Termination of Pregnancy (MTP) Act and the Indian Penal Code, as well as the changes made to the MTP Act in 2021.
Using India’s constitutional and international human rights frameworks, the factsheet examines the legal provisions of the POCSO Act and identifies the resulting key barriers to care:
– Confidentiality of pregnant persons: While the MTP Act requires identities of the pregnant persons to be kept confidential, the POCSO Act mandates the service providers to report the identity of the adolescent pregnant person to the legal authorities. This deters the service providers from providing abortion related services to adolescents.
– Criminalization of consensual sexual activity among adolescents: The blanket mandatory reporting provision under the POCSO Act indiscriminately impacts adolescents who engage in sexual activity among themselves.
– Fear of prosecution: The mandatory reporting provision casts fear of criminalization among abortion service providers adolescents seeking SRHR information and services, and their age-mate consensual sexual partners.
Other equally serious problems include:
– At the time of drafting of the POCSO Act, the National Commission for the Protection of Child (xii) Rights proposed that consensual penetrative sexual acts involving persons above 14 years of age and a person of the same age or within 3 years of their age should not be criminalised. This proposal sought to grant due recognition to the evolving capacities of minors to consent to sexual acts. The evolving capacities of minors have also been taken note of by courts when dealing with cases of consensual sexual relationships involving persons below the age of 18 years. Despite these orders, there continues to be jurisprudential inconsistency and a consequent failure to protect adolescents in consensual relationships from the adverse impact of the POCSO Act.
– Criminalization of all adolescent sexuality: Over the years, treaty bodies such as the Committee on Rights of Children and the Committee on Elimination of Discrimination Against Women have clarified that adolescents should have non-discriminatory access to the full range of sexual and reproductive healthcare services and information. The CRC Committee has specifically urged states to decriminalize abortion to uphold access to safe abortion and post-abortion services and called for confidential medical counselling and advice without the mandatory consent of a parent or guardian. Further, the Human Rights Council has called upon states to respect, protect and fulfil women and adolescent girls’ human rights to have control over their sexual and reproductive health by implementing laws that respect their bodily autonomy and agency. The World Health Organization’s 2022 Abortion Care Guideline recommends: (i) the full decriminalization of abortion, and (ii) removal of third-party authorization requirements, and (iii) notes the need to bypass parental authorization requirements in case of adolescents “…to avoid anticipated violence, reproductive coercion, and family disharmony”.
Thus, there is an inherent tension between mandatory reporting procedures under the POCSO Act that are rooted within the criminal law framework and internationally recognised human rights standards of ensuring “child friendly reporting mechanisms” that account for adolescents’ evolving capacities and non-discriminatory access to sexual and reproductive healthcare services, including safe and legal abortions.
SOURCES: Jurist News, by Mayank Tiwari, 8 May 2020 ; Center for Reproductive Rights et al. The POSCO ACT & Adolescents’ Access to Abortion in India: Heightened Vulnerabilities, Health Risks, and Impact on Their Rights, 25 July 2024 + VISUAL: Report cover.