Protecting children from sexual offences and establishing a juvenile-focused legal system were the main goals of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Article 15 of the Indian Constitution gives the State the authority to implement unique laws aimed at safeguarding children. Furthermore, Article 39 requires the State to make sure that children are not abused when they are young, that their childhood and adolescence are protected from exploitation, and that they are given opportunities for a healthy development in an environment of freedom and dignity.

State Parties are required to put into place effective national, bilateral, and multilateral measures to prevent: (a) coercing or inducing a child into engaging in unlawful sexual activities; (b) using children for prostitution or other illegal sexual practices; and (c) using children for pornographic performances and materials. India ratified the United Nations Convention on the Rights of the Child on December 11, 1992. The POCSO Act was introduced in response to these international and constitutional mandates.

Critical Flaw in POCSO: Lack of Distinction Between Consensual and Non-Consensual Adolescent Sex
Prior to the enactment of this Act, certain sections of the IPC addressed sexual offences, but not all forms of offences against minors were covered. Nor was there a distinction made between victims who were children and adults. The Act was intended to protect adolescents from sexual abuse, not to criminalize consensual sexual relationships. Nevertheless, it has had the unintended consequence of criminalizing consensual, non-exploitative sexual acts between teenagers.

Adolescents are defined, by the Ministry of Health and Family Welfare, as those who are between the ages of 10 and 19. Adolescents in the context of labor are defined as those who are older than 14 but younger than 18. A sizable fraction of POCSO Act cases concern consenting relationships between or with children in the middle adolescent age range (15â€"18 years old). The Law Commission of India (LCI) made comments on the complicated topic of sexual consent age in its 283rd report, which was published in September 2023.

This means that the offences covered by the POCSO have up to now been statutory rape offences, meaning that the presumption of incapacity to consent, rather than the lack of consent, is what makes the offense illegal. The LCI report suggests that in certain situations, where the de jure victim and the accused are not more than three years apart in age, special courts1 should have the authority to sentence someone to a lesser amount if the de jure victim genuinely consents to it.

The National Crime Record Bureau's report on Crime in India for 2019 shows that in 36,97% of cases, the child's "friend/online friend on pretext of marriage" was the alleged perpetrator of penetrative or aggravated penetrative sexual assault under the POCSO Act. But when it comes to who it prosecutes and how old they are, the law actually has some unexpected effects. At least 20.5% of cases on average involved a girl who was in a relationship with the offender, according to a study conducted by the Centre for Child and the Law, NLSIU (CCL-NLSIU) on 2,788 POCSO cases across five states.

HAQ: An analysis of Special Courts in Delhi conducted by the Centre for Child Rights revealed that 35 percent of the cases (79 out of 224) involved romantic relationships between the boy and the girl. Of the 260 cases that Aarambh India (Prerna) in Mumbai handled, roughly 25% involved consensual sexual relationships between the parties, many of whom were between the ages of 16 and 18. Older teenagers between the ages of 15 and 18 are typically involved in romantic relationship cases, according to Partners for Law in Development's (PLD) own ongoing analysis of 50 cases from district courts of Delhi.

Consequences of Criminalizing Consensual Sexual Relations Among Adolescents
The raising of the age of sexual consent from sixteen to eighteen years old was one of the biggest reforms implemented by POCSO. This meant that teenagers in romantic, consensual, non-exploitative sexual relationships were suddenly seen by the State as criminals deserving of severe penalties. Studies carried out in multiple states reveal that a consensual romantic relationship was involved in 20â€"25 percent of cases reported under POCSO. Families of the girl, who disapproved of the relationship due to caste-class differences, the girl eloping, or becoming pregnant, filed the majority of these cases.

In Independent Thought v. Union of India, the Supreme Court interpreted the marital rape exception for wives who are over 15 but under 18 years old, noting that "a girl child giving express or implied consent for sexual intercourse is not a possibility." According to Section 5 of the POCSO Act, having sex repeatedly, having sex with a minor spouse, or having sex and getting pregnant are all considered aggravated penetrative sexual assault. These offences carry a minimum sentence of 20 years in a strict prison, a maximum sentence of life imprisonment for the duration of a person's natural life, or death. The POCSO Act also makes it illegal to engage in consensual, non-penetrative sexual acts with minor adolescents, such as sexting, kissing, and hugs.

In the legal system, men are typically viewed as "perpetrators of child sexual abuse" while girls are viewed as "victims" devoid of agency, maturity, or understanding. Should the boys/men be found guilty, they will face a minimum sentence of 20 years in prison in addition to criminal prosecution and detention. Because the Juvenile Justice (Care and Protection of Children) Act, 2015 permits the transfer of juvenile boys, ages 16 and 17, to adult courts for prosecution of heinous offences, these boys are also impacted. Sexual assault that is both penetrative and aggravated penetrative are considered horrible crimes, and they are usually brought up in situations where teenagers cooperate. There is an added risk of persecution for adolescent couples in interfaith relationships in some states due to laws known as "love jihad.". As a result of criminalizing teenage sexuality outright, experts have identified three primary issues.

First of all, sexual expression and curiosity in adolescents are a natural result of developing physical and psychological characteristics, not a privilege that grants them the ability to consent. Essentially, it's the equivalent of penalizing nature. In addition, society has wrongly classified all forms of sexual expression as child abuse, which stigmatizes them, prevents teenagers from learning the difference between forced and consenting behavior, and seriously impedes their ability to grow as adults. Third, there is a risk of legal repercussions for counselors, healthcare providers, and educators who fail to report any underage sexual activity, even if the adolescent agrees. This is because POCSO criminalizes everything that occurs online and requires reporting of any underage sexual activity. Teenagers are thus denied opportunities to ask for assistance.

In Ashokbhai v. State of Gujarat, placing reliance on Independent Thought v. Union of India, the Gujarat High Court held that the age of consent under POCSO should be re-examined as in this particular case a 19-year-old man in a consensual relationship received a sentence enhancement from seven years to ten years in order to comply with the minimum sentence prescribed for aggravated penetrative sexual assault. The Court held that the minor's consent could not be taken into consideration.

In contrast to Romeo-Juliet laws in the US and Canada, the POCSO Act does not exclude from prosecution any such group of young people who are in consensual, close-knit relationships without abuse. The National Commission for Protection of Child Rights proposed decriminalizing consensual penetrative sexual acts between adults over 14 and within three years of each other during the drafting of the POCSO Bill. They also outlined the circumstances under which a sexual act with a child between the ages of 16 and 18 would be prohibited. This, however, was rejected in favor of protectionist clauses that function on the presumption that teenage consensual sexual expressions are "abuse" that can only be stopped by punishment.

Barriers to Sexual and Reproductive Health Services Due to Mandatory Reporting Requirements
Any individual who learns of a sexual offense being committed against a minor must notify the police or the Special Juvenile Police Unit in accordance with Section 19(1) of the POCSO Act; failing to do so is a crime. Under the Code of Criminal Procedure, 1973, public and private hospitals that treat victims of sexual offences and provide first aid are subject to similar obligations.

Under a strict interpretation, anyone could be a social worker, counsellor, health care provider, etc. must notify the police if teenagers under the age of 18 ask for help or services related to pregnancy care or termination, contraception, testing and/or treatment for STDs, or show any indications of engaging in sexual activity or sexual abuse. When teenage girls approach doctors for a safe medical termination of their pregnancy, they run the risk of having a criminal case brought against their spouse or partner. Due to the assumption that marriage automatically implies sexual activity, married minor girls are more likely to experience additional risks when using any services, benefits, or treatments.

Re-evaluating Adolescent Justice: The Necessity of De-Criminalization
Treating teenagers differently from younger children has a normative foundation and justification. According to the 2013 National Policy for Children, "children are not a homogeneous group and their different needs require different responses." The expert committee charged with carrying out and interpreting the Convention on the Rights of the Child, the Committee on the Rights of the Child (CRC), has acknowledged that "the rights of adolescents differ significantly from those adopted for younger children."

Surprisingly, the Juvenile Justice (Care and Protection of Children) Act, 2015 in India contains a statute that legally recognizes this distinction. According to Section 15 read in conjunction with Section 18(3) of the Act, a minor who is accused of committing a heinous offense and is between the ages of sixteen and eighteen may be prosecuted and treated like an adult.

A preliminary assessment "with regard to his [juvenile's] mental and physical capacity to commit such an offense, ability to understand the consequences of the offense and the circumstances in which he allegedly committed the offense" may be carried out by the Juvenile Justice Board (JJB) in order to decide whether or not to treat the child as an adult. To conduct this kind of evaluation, the JJB must enlist the aid of licensed psychologists, psycho-social workers, or other professionals with relevant experience.

The JJ Act's exception for teenagers highlights the disparities in treatment that exist in the criminal justice system. The State treats teenagers as a homogenous class when it comes to sexual agency recognition, but it has made an exception for them to be treated as adults when it comes to prosecuting them for horrific crimes. The State's paternalistic approach towards the consensual and non-exploitative sexual activities of adolescents of similar age is revealed by this arbitrary classification. This strategy violates the Convention's obligations, which aim to strike a balance between the protections afforded to adolescents and their evolving capabilities. The Convention is the basis for the enactment of POSCO. It is imperative to take corrective action while keeping the best interests of the children in mind, given the prevalence of abuse of POCSO by adolescent families and the court's experience handling romantic relationships.

Conclusion
For teenagers who are exploring or exercising their agency and having non-exploitative, consensual sexual relationships, the POCSO Act provides no safeguards. The goal of preventing sexual harm to adolescents is greatly outweighed by the criminalization of teenagers who are in consensual, non-exploitative relationships. By permitting State intervention, control, stigmatization, and punishment for normative expressions of sexuality, it infringes their fundamental rights to life, liberty, privacy, and dignity. Adolescents' best interests are violated when the necessity of protecting them is not balanced with their growing autonomy, leaving them more vulnerable. It also obstructs their access to safe sexual and reproductive health services and information, disrupting their rights to development, education, health, and survival.

It is constitutionally questionable that the POCSO Act fails to distinguish between sexual violence against minors and consensual, non-exploitative acts committed by teenagers. In Justice KS Puttaswamy v. Union of India, the apex court held that the preservation of personal intimacies is at the core of the right to privacy, recognizing it as a fundamental right. Additionally, in Navtej Singh Johar v. Union of India, the Supreme Court upheld the constitutional protection of "consensual intimacies" and interpreted personal autonomy as the right to choose one's partners.

The purpose of POCSO's enactment was child safety. Their sexuality cannot be used as a weapon to control and govern it. Countless investigations have confirmed the extent of the issue brought about by the current legislation. Particularly in view of the disparate treatment of law that has been brought to light here, the government's strict position on the matter requires immediate re-evaluation.