Author: Diya Theresa Tony

Introduction:

The Protection of Children from Sexual Assault Act (POCSO), 2012 was enacted after widespread demands for stringent penal laws to curb the horrific violations against minors. What was welcomed as a necessary legal safeguard of dignity and rights soon became a tool of parental control as the Indian legal system saw an alarming rise in the number of POCSO cases against juveniles. Various High Courts across the country and most recently, the apex court highlighted the high feasibility of using the POCSO Act to censor and control consensual adolescent relationships. The Judiciary expressed concerns regarding the misuse of a legislative safeguard, subjecting consenting adolescents to the harsh handling of criminal procedures, societal stigma and potential hindrance in academic and career growth. Indeed, the most recent court cases on the potential introduction of a Romeo-Juliet clause under POCSO Act have been mostly colored by fears of abuse, consent, and teenage relationships. As critical as these issues may be, a more fundamental and structural problem is that the law makes inflexible a criminal procedure that already has issues of its own. When it comes to consensual teenage relationships, the fact that there is no statutory exception makes the criminal procedure to be rather punitive way before the issue of guilt or innocence can be definitively resolved.

POCSO Act: A View on Procedure: 

Protection of children against sexual offences act was enacted with the evident and requisite aim of protecting children against sexual exploitation and maltreatment. To achieve this end, the law takes a rigid approach whereby protection is prioritized as opposed to discretion. When an allegation is brought forward, criminal law machinery is in operation virtually by default. The procedure requirements are registration of an FIR, arrest of the accused, and initiation of prosecution which are not regarded as options. Although such a solution can be used in situations that entail violence, coercion, and manipulation, it raises serious procedural difficulties when it applies across board to consensual relationships involving adolescents of close age.

The given result of the procedure contradicts the conceptual truth that bail is the rule, and not jail. In cases where freedom is not restricted as a by-product of a convicted offense but rather as a result of the rigidity of the law, the criminal process itself becomes disproportionate. Very often, courts are forced to use some indirect factors, including a controversy over age determination or perceived exceptional circumstances, to justify bail. Although this judicial improvisation usually is highly motivated, it also illustrates the ineffectiveness of the currently existing structure in handling these cases at an earlier stage.

The effects of this rigidity in the process do not start and end with the accused. Adolescents who commit such cases are also meted out the full brunt of the criminal process. They can be taken to the shelter homes, separated with their families and made to undergo intrusive check-ups. This is usually followed by educational disruption and social stigma, which increases the damage. Trying to save children by means of the rigid legal tools, the process can unfortunately lead to the outcomes that will negatively affect their well-being and freedom of choice.

It is in this regard that the suggestion of a Romeo-Juliet clause has a procedural meaning. Instead of a weakening of child protection or a declaration in favor of the moral legitimacy of relationships between adolescents, such a clause can be interpreted as a filter. A very specific exemption that understands consensual relations between adolescents who are close to each other may help avoid the automatic deployment of the criminal justice system where it is not necessary. This would enable the investigative agencies and the courts to channel their resources towards actual cases of abuse and exploitation.

Procedurally speaking, the addition of such a clause would help balance POCSO-based bail jurisprudence. Courts would no longer have to strain statutory interpretation at the bail phase by allowing early distinction to be made between exploitative and non-exploitative behavior. This would help cut down on people being incarcerated unnecessarily, curb procedural overreach and uphold the principle of proportionality in criminal law.

Nevertheless, risks of such reform should be also mentioned. A blanket exemption may be abused to cover coercive or manipulative behavior and this is especially true in a situation of power disparity. Any Romeo-Juliet provision must hence be put in meticulous contemplation with precautions that bar affections that may be focused on authority, manipulation, or age gaps. To make child protection the key goal, judicial control and transparency of the drafting of the legislation would be needed.

Conclusion:

Whether a Romeo-Juliet clause should be introduced or not should not be reduced into the issues of misuse or morality. Fundamentally, the problem is more procedural. It is the question of criminal law as a tool of justice or a pre-trial punishment mechanism. Focusing on the procedural distortions caused by the lack of such a clause the legal system will be able to enhance both the protection of children and the fairness of the criminal procedure. In this respect, reform would not undermine POCSO but would strengthen its validity and efficiency.