Women are weak. Women are not as capable as men. They do not have independent thought processes. Minor girls are subservient to minor boys. These are some of the allegations levelled against patriarchy. Incidentally, our law enforcement agencies too have a similar mindset. A brief overview of implementation of POCSO is good enough to reach this conclusion.
No problem with provisions
On the face of it, POCSO is designed to protect children from perverted sections of humanity. Section 2(1)(d) of the act defines a child as anyone below 18 years of age. There is no gender distinction here. Same is the case for incriminated ones. In the definition of sexual assault, Section 3 of the act does seem to give a feeling that only men will come under its ambit. But, Section 4 and 6, which prescribe punishment, eliminate any Gender discrimination.
In letter and spirit, it is good and well-intentioned when it comes to punishing the assaulter. Surely, for every 1 conviction, 3 are acquitted, but that owes mainly to the fact that the act is subject to misuse for personal rivalry.
Teenage love
The problem gets more complicated when the accused is a teenager. These are the years of abnormal hormonal growth. Biological changes during these years can only be matched by decline in old age, though on different ends of the spectrum. The intensity of this change is the same in both genders. This is the reason why teenagers fell in love quickly. In modern-day and age, movies and advertisers also tend to overshoot their expectations beyond the limit of reasonable practicality.
Resultantly, kids fall in love quickly and in lots of cases, it quickly metamorphoses into sexual relationships. Problem arises when their parents get to know about it. Either the love ends, or they elope. The third observable reality is that, to end the ongoing relationship, POCSO charges are levelled. It happens when both boy and girl elope as well.
Also read: Kerala does not only top the literacy rates, but also POCSO cases!
Patriarchy in law enforcement
The problem is that these charges are based on patriarchal notions. Law enforcement agencies assume that a teenage girl has next to zero mental capacity of her own, a highly patriarchal notion. They assume that even if the girl has consented to having a physically intimate relationship with a teenage boy, she is not the one who is capable of initiating it. Instead, it pins all the blame on the boy, effectively terming the girl as considerate.
Funny thing is that no section of POCSO prohibits Police from putting the onus on teenage girls. Police personnel draw their inspiration from Section 375 of IPC, which is not gender neutral. The muscle memory of handling cases under Section 375 is utilised for POCSO charges. There are demands for making Section 375 gender neutral. POCSO’s anti-rape provisions should have been good beginning. Unfortunately, ground reality is a lot different.
Also read: Mockery of the POCSO Act; Maulana comes to court and marries rape victim, a minor, to her rapist
High Courts’ observations and need for change
Madras High Court had expressed its disappointment about criminalisation of consenting relationship by minors in Sabari v. Inspector of Police case. The observation was again repeated two years later in a criminal appeal. In November 2022, Justice B Veerappa, the judge of the Karnataka High Court also highlighted the issue. He is in favour of excluding love affairs from the ambit of POCSO. Various other High Courts have also raised their concerns regarding this growing menace. These include Meghalaya High Court and Delhi High Court among others.
Just a few days ago, in one of the cases, the alleged victim stood beside the accused, due to which the Court granted bail to him. These may be aloof concepts for theory minded professionals, but it is a harsh reality in India. Generally, both kids are in consensual relationships and practitioners of POCSO need to change the perception of their reality.
They need to come out of their highly conservative thinking and treat women and teenage girls as equal contributors to every aspect of society.
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