CONSENT: A CAVEAT IN POSCO – BALANCING JUSTICE AND ADOLESCENTS’ RIGHTS

AUTHOR- PRANAV BHASKAR, STUDENT AT SCHOOL OF LAW, PRESIDENCY UNIVERSITY

BEST CITATION – PRANAV BHASKAR, CONSENT: A CAVEAT IN POSCO – BALANCING JUSTICE AND ADOLESCENTS’ RIGHTS, ILE LEX SPECULUM (ILE LS), 1 (1) OF 2023, PG. 479-491, APIS – 3920 – 0036 | ISBN – 978-81-964391-3-2.

ABSTRACT

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted in India to curb cruel and barbarous acts of sexual offenses against minors. It aims to protect children from sexual assault, sexual harassment, and pornography, establishing Special Courts to handle related cases. The Act defines a child as any person below the age of eighteen years, making it gender-neutral and inclusive of all sexual abuses irrespective of gender. However, a growing concern arises regarding consensual relationships between adolescents close to the age of majority, where sexual activity might occur with mutual consent. The Act does not consider consent in prosecuting sexual assault cases involving minors. This has led to the criminalization of romantic relationships and poses a significant challenge to the criminal justice system.

Several high courts have expressed reservations about the stringent application of the Act in cases of consensual adolescence sexual activity. They have emphasized understanding adolescents’ psychology and the complexities of teenage relationships. In various judgments, the courts have highlighted that the Act’s aim is to protect children from abuse and not to punish adolescents involved in romantic relationships. The courts advocate distinguishing cases of teenage relationships from cases of sexual assault on younger children below sixteen. While the POCSO Act is vital in protecting children, it must be balanced with respecting adolescents’ rights, including their sexual autonomy and decision-making abilities.

The question of consent becomes crucial, as consensual relationships are inadvertently being classified as sexual offenses under the Act. Courts have recognized that mere submission or resignation does not constitute consent. True consent requires voluntary, informed, and free agreement from both parties, involving both mental and physical willingness.

KEYWORDS: POSCO ACT, AGE UNDER POSCO ACT, CONSENT AND POSCO, JUDICIAL TREND IN POSCO, CONTEMPORARY JUDGEMENTS IN POSCO ACT