Context: Recently, the Supreme Court of India declined to impose a sentence on a man convicted under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), noting that the victim did not view the incident as a crime.
Relevance of the Topic: Prelims: Key facts related to POCSO Act.
Protection of Children from Sexual Offences (POCSO) Act:
- The POCSO Act, enacted in 2012, aims to protect children (anyone under 18 years) from sexual abuse and exploitation.
- It criminalises both penetrative and non-penetrative sexual assault, sexual harassment, and child pornography.
- It is a gender-neutral law, protecting both boys and girls.
- POCSO deems all minors under 18 incapable of ‘consent’, and any sexual activity with a person under 18 is automatically considered abuse, even if the child agrees.
- The Act mandates child-friendly procedures like special courts, in-camera trials, and video-recorded testimonies.
- With strict penalties, a presumption of guilt on the accused, and time-bound trials, the Act aims to fill critical legislative voids and deliver swift, victim-centric justice.
Controversial ruling by the Calcutta High Court
- Earlier, the Calcutta High Court overturned the conviction of a man under the POCSO Act, claiming his relationship with a 13-year-old girl seemed consensual. The HC further recommended legislative amendments to exclude consensual relationships from POCSO’s ambit.
- The judgment attributed ‘adolescent sexuality’ to climate change, food habits, early puberty, and a “taboo-free atmosphere” influenced by social media and pornography.
- This ruling was controversial because POCSO clearly states that minors cannot legally consent.
How has SC deviated from POCSO in a recent judgment?
- The SC in a suo motu proceeding set aside the Kolkata HC’s ruling, reaffirming that POCSO does not recognise ‘consensual sex’ with minors and its objective must not be diluted.
- However, exercising Article 142 (extraordinary jurisdiction), the SC withheld sentencing of the convict and directed the West Bengal government to ensure the welfare and rehabilitation of the victim and her child.
Article 142:
- Article 142 empowers the Supreme Court to ‘pass any decree or make any order as is necessary for doing complete justice in any cause or matter pending before it’.
- However, the term ‘complete justice’ is not defined.
- This power is exclusive to the Supreme Court, not available to High Courts or lower courts.
- It is a special and extraordinary jurisdiction used only in exceptional cases where strict adherence to existing laws may lead to injustice.
- Orders passed under Article 142 are final and binding on all authorities and courts across India.
- The SC withheld sentencing not to dilute the POCSO law, but because the victim's situation was highly complex and humanitarian concerns were involved. The apex Court emphasised that the unusual deviation from the child protection law in this case must not set a precedent.
However, any such exception risks weakening the core intent of the POCSO Act to protect minors from sexual exploitation. Opening the door to exceptions could lead to widespread misuse, with perpetrators hiding behind the guise of ‘family protection’ to exploit vulnerable girls.
This judgment reopens the debate to reconsider the POSCO Act to non-criminalise consensual romantic relationships between adolescents.