Calcutta High Court Proposes the Decriminalization of Consensual Sexual Activities with Adolescents aged 16 and Above under POCSO Act

The bench in its order suggested girls to control sexual urge/urges as in the eyes of the society she is the looser when she gives in to enjoy the sexual pleasure of hardly two minutes.

The Calcutta High Court has raised a significant legal concern pertaining to the application of the Protection of Children from Sexual Offences Act (POCSO Act). Specifically, the court has identified what it perceives as an issue wherein the POCSO Act unjustly conflates consensual acts among adolescents with cases of sexual abuse. This concern has been highlighted in the context of the case titled “Probhat Purkait vs. the State of West Bengal.”

A division bench, comprised of Justices Chitta Ranjan Dash and Partha Sarathi Sen, has underscored the imperative of striking a delicate equilibrium between the imperative to protect children and the inadvertent criminalization of adolescents. Consequently, the court has proffered the recommendation for the decriminalization of consensual sexual activities involving adolescents aged 16 years and older.

Although the primary legislative intent behind the POCSO Act is to safeguard all individuals below the age of 18 from potential sexual exploitation, the court has astutely pointed out the unintended consequence of the law in potentially infringing upon the civil liberties of young individuals engaged in consensual relationships.

“A legal amendment is, therefore necessary to decriminalise consensual sexual acts involving adolescents above 16 years, while also ensuring that all children below 18 years are protected from sexual offences under the POCSO Act,” the Court said.

The Court has opined that the POCSO Act lacks the requisite efficacy in striking a suitable equilibrium between the protection of adolescents from sexual abuse and the acknowledgment of their customary sexual behaviors.

“Instead of protecting adolescents from abuse, the law exposes those in factually consensual and non-exploitative relationship to the risk of a criminal prosecution and compromises the child protection mandate,” the bench observed in its order.

Per the Court’s assertion, it has come to light that a statute initially conceived to address child sexual abuse is, in practice, predominantly invoked for the regulation of adolescent sexual conduct. This application is particularly evident in cases where restrictions are imposed upon the sexual agency of adolescent girls, often justified under the pretext of safeguarding familial honor.

Additionally, the Court has enjoined the necessity for the implementation of an extensive sexual education program.

“All children and adolescents need to be provided rights based comprehensive sexual education. Legal and policy reforms are also needed to ensure confidential and barrier free access of adolescents to sexual and reproductive health services. Comprehensive sexuality and life skill education should also to be integrated in the school curriculum,” the bench said.

The court emphasized that this action should be seen as a crucial step in protecting the rights and well-being of adolescents and in promoting their health, dignity, and overall development.

These comments were made during a case involving a young man who was convicted under the POCSO Act for sexually assaulting a minor girl who later gave birth to a child at the age of 17.

In this case, the girl had a relationship with the young man that began when she was 14. However, when her parents found out she was pregnant, they took legal action against him.

In the court’s detailed decision, it was explained that testosterone, a key hormone, is mainly produced by the testes in males and the ovaries in females, with small amounts coming from the adrenal glands in both. However, these glands don’t automatically activate; they need things like seeing, hearing, reading about sexual things, or talking to people of the opposite sex to be stimulated. So, the court stated that our own actions create our sexual desires.

“Sex in adolescents is normal but sexual urge or arousal of such urge is dependent on some action by the individual, may be a man or woman. Therefore, sexual urge is not at all normal and normative. If we stop some action(s), arousal of sexual urge, as advocated in our discussion supra, ceases to be normal,” the bench underscored.

Hence, the bench recommended a ‘duty/obligation based approach’ concerning this matter and proposed the following responsibilities for every female adolescent:

1. Safeguard her entitlement to the integrity of her body.
2. Preserve her dignity and self-esteem.
3. Strive for her comprehensive self-development, transcending gender-related constraints.
4. Exercise control over her sexual impulses, as societal perceptions tend to diminish her status if she indulges in fleeting sexual gratification.
5. Safeguard her autonomy over her body and her privacy.

“It is the duty of a male adolescent to respect the aforesaid duties of a young girl or woman and he should train his mind to respect a woman, her self worth, her dignity and privacy and right to autonomy of her body,” the bench added.

To achieve this objective, the court stated that the concept of charity should commence within the family, with parents serving as the primary educators.

“We therefore feel that parental guidance and education to children specially the girls to recognise bad touch, bad signs, bad advances and bad company is necessary specially with emphasis on their health and reproductive system to have sex at an age not sanctioned by law,” the bench observed.

Likewise, with regard to male juveniles, the bench underscored that parental guidance and education should encompass the imperative principles of respecting women, upholding their dignity, safeguarding a woman’s bodily integrity, and engaging in non-sexual relationships with women, notwithstanding any advances from the female party. This educational mandate is to endure until the male juvenile attains the requisite capacity to sustain a family, as stipulated by the bench.

“The family where a child is there should maintain such a conducive atmosphere in the house that no kid grows up believing that it is ‘OK’ to violate women. We should never ever think that only a girl is subject to abuse, because there is no escape for a boy even now-adays,” the bench underlined.

Likewise, with regard to male juveniles, the bench underscored that parental guidance and education should encompass the imperative principles of respecting women, upholding their dignity, safeguarding a woman’s bodily integrity, and engaging in non-sexual relationships with women, notwithstanding any advances from the female party. This educational mandate is to endure until the male juvenile attains the requisite capacity to sustain a family, as stipulated by the bench.

“It is normal for each adolescent to seek the company of opposite sex but it is not normal for them to engage in sex devoid of any commitment and dedication. We want them to spread their wings high with a view to realise their best selves. Sex shall come automatically to them when they grow self-reliant, economically independent and a person which they dreamt one day to be,” the bench emphasised.

Simultaneously, the court asserted that, at such a juncture, the amalgamation of sexual intimacy should coincide with love, commitment, and a steadfast dedication to one another. At this point in life, individuals are expected to possess the discernment and emotional maturity required to comprehend each other, adapt to each other’s needs, and extend forgiveness when necessary, as per the court’s perspective.

The Court also made reference to the Mahabharata to illustrate:

“We beseech our adolescents to follow a salutary legal principle ‘Dharmo Rakshyati Rakshyita’ (one who protects law is protected by law) and proceed in their path of self-development without being influenced by bashful urge of urgent sex.”

The bench then proceeded to quash the conviction order passed against the appellant in September 2022.