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Indian teenage sex shouldn’t be a crime. There’s a problem with POCSO

The logic of 18 years is linked to marriage, and its telos remains that legitimate sex means only reproduction, whereas it conceptually attempts to erase idea of pleasurable sex.

The Meghalaya High Court recently quashed a POCSO case on the mutual consent of the survivor and the accused, who were 16 and 25 years old, respectively, at the relevant time, with two children. There is also a petition filed before the Supreme Court challenging the blanket criminalisation of adolescent sexual activities born out of the POCSO Act 2012.

POCSO raised the age of consent (AoC) from 16 to 18 years in India. It means that any person below the age of 18 is considered a minor and is unable to give consent legally. What this has done is to make all kinds of sexual activities involving anyone under 18 years of age, including adolescents (developmental category) or juveniles (legal category), a crime, by abolishing the distinction between ‘factually non-consensual and exploitative sex’ and ‘factually consensual and non-exploitative sex’. 

Further, sections 19-23 of the Act prescribe mandatory reporting procedures to protect victims. It obligates any person, including the child and a medical professional, who knows or has reason to apprehend a POCSO offence, to immediately report it to the local police or the Special Juvenile Police Unit (SJPU).

A failure to report or record such an offence, as well as making a false complaint or providing false information, is punished with imprisonment or with a fine or with both, albeit exempting a child from this punishment provision.

Why blanket criminalisation?

Sex is as much a question of law as it is of politics. Individual freedom and communitarian rules are not always symmetrical. This appears in the case of adolescent love, as adolescents approaching the age of 18 do not follow the legislative mandate of ideal minorityhood most of the time. Based on data, it is apparent that a large volume of cases under POCSO are those where adolescents are involved in borderline age group relationships, which often do not have parental or familial approval. 

In this sense, the Parliament’s intention behind this blanket criminalisation approach is both protective and paternalistic. It is protective in the sense that all children must be protected by the state from any form of sexual harm. At the same time, not realising that this approach........

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