LAW & SOCIETY march 26, 2022 vol lViI no 13 EPW Economic & Political Weekly 10 POCSO and Judicial Discomfort Alok Prasanna Kumar Alok Prasanna Kumar (alok.prasanna@ vidhilegalpolicy.in) is a senior resident fellow at Vidhi Centre for Legal Policy, and is based in Bengaluru. While the Protection of Children from Sexual Offences Act, 2012 was ostensibly introduced to combat child sexual abuse, its overbroad provisions have made it possible to criminalise even consensual sexual acts and has caused judicial discomfort. This column examines three different orders of high courts across the country where such judicial discomfort over the strict application of the POCSO has been expressed. J une 2022 will mark one decade of the coming into force of the Pro- tection of Children from Sexual Offences ( POCSO) Act, 2012. The law defines a “child” as any person below the age of 18 years, and unlike Section 375 of the Indian Penal Code ( IPC), it does not define or use the term “consent” anywhere. The contrast with the IPC is necessary to point to the specific changes brought about by the POCSO and the implications of the same. At the time the POCSO was introduced, the “age of consent” for unmarried girls was 16; it was presumed that anyone younger than this age could not lawfully consent to sexual intercourse. The POCSO raised the age of consent to 18 years and later, following the recommendations of the J S Verma Committee, Section 375 of the IPC was also amended by the Criminal Law (Amendment) Act, 2013. However, as has been clarified by the Supreme Court of India in Independent Thought v Union of India, 1 POCSO being the special legislation on the matter of child sexual abuse ( CSA) will prevail over the IPC, in case of any inconsist- ency. While this was held in the specific context of the exception for marital intercourse under the IPC, nonetheless, the principle applies in general to the POCSO as well. The presumption in law that any per- son below the age of 18 cannot possibly consent to sexual intercourse, is prob- lematic to say the least. Those below the age of 18 are considered competent to contract and technically even marry 2 suggesting that the presumption of law— that minors are incapable of giving consent—is not absolute. In the specific situation of the POCSO, the provisions make reporting of the crime a legal duty, punishable under law for failing to do so. This is irrespective of whether there was consent, in fact. The possibility that the POCSO might end up criminalising consensual adolescent relationships was something that was raised even as the law was passed (Raha 2014), and as recent data and studies have shown, it has been used to punish inter-caste and inter-religious relationships. These worries—over the problems with the POCSO—have been voiced by the judiciary tasked with interpreting and implementing this law as well, and in this column, I will be discussing three cases that have come to three different high courts and at three different stages of criminal proceedings, where courts have expressed their discomfort over apply- ing the POCSO, in its strictest rigour. Three Cases, Three High Courts The first of the three orders I want to discuss is G Vijayalakshmi v State, 3 decided by the Madras High Court on 27 January 2021. This was, as the court describes it, “a very peculiar petition” where both the accused and the victim filed a joint petition seeking to quash the proceedings against the accused under the IPC, POCSO, and the Prohibi- tion of Child Marriage Act, 2006. The allegation was that the accused had “kidnapped” the victim and had sexual relations with her, thereby committing the offences in question. However, even as the trial was underway, the case of the prosecution fell apart when the victim and her family turned hostile stating that the relationship was con- sensual and she had eloped willingly with the accused. The judge, Justice N Anand Venkatesh found himself in a quandary. At the hearing, he spoke to the victim herself and examined her statement, given on oath, and was satisfied that her elope- ment and relationship with the accused was consensual. However, the rigours of POCSO required him to ignore the same and allow the trial to proceed. In an elaborate judgment that looks at medi- cal research on adolescent relation- ships, the purpose of the POCSO, and the principles laid down by the Supreme Court on quashing the first information reports ( FIRs ), Justice Venkatesh pro- ceeds to quash the case. Interestingly,