Volume 15, Issue 4

Age of Consent Under the POCSO Act: Legal Challenges and Contemporary Concerns

Author

Anagh Pandey & Dr. Gargi Bhadoria

Abstract

The Protection of Children against Sexual Offences Act, 2012 establishes the age of consent to sexual intercourse as eighteen years in the entire country a significant departure joined with other structures, which differentiated between marital and non-marital relations. Even if such legislative interventions show the genuine desire of making children safe from sexual exploitation, their pan-India applicability raises serious legal questions that need critical examination. This paper examines the age of consent framework in a critical manner under six chapters discussing its constitutional roots, constitutional architecture, judicial reactions and operational consequences in different factual situations. An analysis shows that there is a contradiction between the protective aims and new realities, such as consensual adolescent relations, clash of personal law and over-criminalization. There has been inconsistency in the courts’ application with some showing the agency of the adolescent and others the letter of the law. The paper will analyze the constitutional issues including the question of proportionality after the landmark judgement of the constitution in relation to privacy, the question of implementing the rules with a backlog of cases and evidential question. Furthermore, it will also look at comparative international approaches to providing alternative solutions. Although the protective rationale ought to be firmly confirmed, focused amendments should be made to the text to acknowledge contextual specificities so as not to unintentionally criminalise consensual adolescent relations, whilst ensuring adequate protection against the real signs of exploitation.

BIBLIOGRAPHY

Statutes

Protection of Children from Sexual Offences Act, No. 32 of 2012, India Code (2012).

Indian Penal Code, 1860, India Code (1860).

Prohibition of Child Marriage Act, No. 6 of 2007, India Code (2007).

Constitution of India.

Cases

Gaurav Jain v. Union of India, (1997) 8 S.C.C. 114 (India).

Independent Thought v. Union of India, (2017) 10 S.C.C. 800 (India).

Justice K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1 (India).

Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248 (India).

S. Manivannan v. State, 2021 SCC OnLine Mad 2162 (India).

Books

Agnes, Flavia, Marriage, Divorce and Matrimonial Litigation (Oxford Univ. Press 2011).

Bajpai, Asha, Child Rights in India: Law, Policy and Practice (Oxford Univ. Press 3d ed. 2017).

Baxi, Pratiksha, Public Secrets of Law: Rape Trials in India (Oxford Univ. Press 2014).

Hamilton, Carolyn, Family, Law and Religion (Sweet & Maxwell 1995).

Menon, Nivedita, Seeing Like a Feminist (Zubaan 2012).

Narain, Vrinda, Gender and Community: Muslim Women's Rights in India (Univ. of Toronto Press 2001).

Satish, Mrinal, Discretion, Discrimination and the Rule of Law (Cambridge Univ. Press 2017).

Steinberg, Laurence, Age of Opportunity: Lessons from the New Science of Adolescence (Houghton Mifflin 2014).

Journal Articles

Kothari, Jayna, The POCSO Act: An Analysis of its Key Provisions, 48 Econ. & Pol. Wkly. 32 (2013).

Reports

Law Commission of India, Review of Rape Laws, Report No. 172 (2000).

Ministry of Women and Child Development, Government of India, Model Guidelines under Section 39 of the POCSO Act (2013).

National Commission for Protection of Child Rights, Implementation of the POCSO Act: A Status Report (2019).

DOI

https://doi.org/10.62226/ijarst20262655

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