Oliver Wendell Holmes Jr. had aptly remarked, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” This highlights a key issue of contemporary criminal jurisprudence: the necessity to balance the abstract terminology of statutes and the realities that they aim to govern. The State of Uttar Pradesh versus Anurudh and Anr. depicts this tension within the framework of the Protection of Children from Sexual Offences Act, 2012. The Allahabad High Court, while granting bail in a POCSO case, had given blanket directions concerning the medical identification of the age of the victim during investigation. The Supreme Court reversed these orders and stated that a court examining a bail application cannot come up with procedural requirements that venture beyond the statutory framework of the determination of age in criminal law. The ruling is notably valuable due to its final “post-script” where the apex court dealt with a wider issue about the invocation of POCSO.
The Supreme Court recognised that a pattern was observed in some courts throughout the country with POCSO cases emerging as a result of consensual romantic relationships between adolescents. Most of these cases do not start because of the minor herself triggering the criminal process but rather through parents or guardians who disapprove of the relationship. Consequently, a law that safeguards children against sexual exploitation can occasionally be used in situations in which the association is not necessarily coercive or predatory. The court realised this was a clash between social reality and statutory protection and proposed that the legislature might want to introduce a ‘Romeo-Juliet’ clause to allow some limited exceptions to consensual relationships in the adolescent age group but to nonetheless maintain strict punishment where the relationships involved genuine sexual abuse.
The problem identified by the court is a result of the structure of the framework of POCSO. The law indicates that a child is anyone who is under the age of 18 and that any sexual intercourse involving a child is considered a criminal offence, irrespective of the consent or the age difference between the two people having sexual intercourse. This protects children but it also obliterates the line between exploitative adult sexual behaviour and consensual sex between teenagers. Such a blanket treatment has led to a repeated pattern of prosecuting teenagers in relationships, usually when the families are not content with the relationships. The criminal justice system thus becomes a tool of parental control.
The Delhi High Court has also expressed concern over the inflexible interpretation of POCSO. In Ajay Kumar vs State Govt. of NCT of Delhi the court warned that POCSO was not meant to allow the criminalisation of consensual romantic relationships between young people who are of close age. The court repeated the same view in Riyaz v. State & Anr., noting that in cases where the relationships between girls under the age of 18 years and young men of a similar age are concerned, the case tends to be in a grey area of the law. Although consent given by a minor is not legally recognised as per law, the court admitted the fact that in most of such cases, it is not the coercive and exploitative behaviour but genuine romantic relationships. Such observations indicate the rising judicial consciousness that applying the provisions of POCSO mechanically can lead to disproportionate results that are not commensurate with the social facts behind such cases.
The discussion has been taken a step further by the Madras High Court, which explicitly suggested a legislative reform. In Sabari @ Sabarinathan @ Sabarivasan vs Inspector of Police, Belukurichi Police Station, Justice V. Parthiban, the court noted that when a girl at the age of 16 or 17 has entered into a romantic relationship, the law per se considers the relationship to be criminal in case she is subjected to any sexual contact. However, the court added that the consequences do not sufficiently explain the relationships that occur due to mutual affection, youthful curiosity, and biological attraction between adolescents. The court thus proposed that the legislature consider amending the current statutory framework. It suggested that the same rule would not apply to consensual relationships involving individuals above the age of 16 as they could be treated differently from cases involving younger children. Another suggestion that the court made was the introduction of a close-in-age exception, whereby the age difference between the two parties must not exceed about five years. With such a provision, teenagers would not be taken advantage of by significantly older individuals, and consensual teenage relationships would not necessarily be subject to sexual criminal punishment.
Collectively, these judicial remarks indicate a more fundamental normative dilemma on child-protection laws — that of protection and paternalism. POCSO is vital to protecting children against sexual exploitation and abuse. But used without enough sensitivity to social context, it can criminalise relationships which are not based on coercion, manipulation or predation. Judicial systems are beginning to acknowledge the fact that the relationships between adolescents occur in a differentiated developmental and social context. Adolescents have different levels of emotional and personal agency, and the statute should be able to tell the difference between predatory behaviour and agreeable interaction between people of almost similar age.
Even though the courts are still obliged by the statutory requirement that the consent of a minor is not binding in legal terms, they have recently started admitting that the blanket use of POCSO can yield results which are technically right but substantively wrong. A potential avenue of resolving these conflicting interests will be a focused Romeo and Juliet provision that is limited in scope. Criminal law should always be in touch with the social realities that it aims to regulate in order to be effective as well as fair.
Ashok Ramappa Patil is Vice-Chancellor and Sumit Kumar Singh a research assistant and student at the National University of Study and Research in Law, Ranchi
