Context

The Chief Justice of India’s recently raised the concerns about the age of consent under the POCSO Act. CJI quested parliament to review the age under POCSO act.

What are the issues related to age of consent?

Criminalization of romantic relationship: The Madras, Delhi and Meghalaya High Courts have flagged matters concerning criminalisation of romantic relationships between or with an adolescent under POCSO.
AK v. State Govt of NCT of Delhi: On November 12, the Delhi High Court in AK v. State Govt of NCT of Delhi (order by Justice Jasmeet Singh) stated that the intention of POCSO was to protect children below the age of 18 years from sexual exploitation and not to criminalise romantic relationships between consenting young adults.
Government not in favour of revision of age: The government told Parliament that it does not have any plan to revise the age of consent.
Blanket ban on anticipatory bail: The recent criminal law amendment in UP that imposed a blanket ban on granting anticipatory bail to a rape accused rubs salt on the already wounded.

Criminalization of sexual act: POCSO conflates exploitative sexual practice and general sexual expression by an adolescent, and criminalises both.
Overlooking the voluntary sexual act: Criminal law has become an instrument to silence or regulate a non-exploitative consensual sexual relationship involving a minor girl, which is voluntary.
Abuse of POCSO act: The obiter of the court that POCSO has become a tool in the hands of certain sections of society to abuse the process of law is corroborated by other courts too.
Victimization of girls: The cumulative victimisation of the “consenting” girl also deserves the lawmakers’ attention.

Increased age of consent: The age of consent has increased from 10 to 12 to 14 to 16 and finally to 18 years by the 2013 amendment, in order to bring it in conformity with the then newly legislated POCSO Act.
Consent of minor girl is illegal: The law disregards the likelihood of a minor girl engaging in sexual activity voluntarily it thus desexualises her.
Ignoring the social reality: The law that criminalises adolescent sexuality either ignores social reality or pretends to do so.
Sexual experience before the age of consent: According to the NFHS-5, for instance, 39 per cent women had their first sexual experience before turning 18. The same survey provides additional evidence of sexual engagement among unmarried adolescent girls by reporting contraception use by 45 per cent of unmarried girls in the age group of 15-19 years.

Separate procedure for POCSO Act: Need to evolve a separate procedure for children while dealing with POCSO cases.
Victimization should be avoided: Romantic” lovers in a mutually consensual relationship should not be victims of the abuse of the criminal justice system processes.

Age of consent is matter of debate and cannot be decided alone by judges and judiciary. Need of an hour is a sexual education in the children and adolescence. We need to fight to taboo about sex and debate on sex.

Mains Question

Q. What are the misuse cases under POCSO act? What are the mismatch between todays POCSO act and social reality of adolescent sex life?