Taking in its stride, the adage made popular by none other than Martin Luther King- “Injustice anywhere is a threat to justice everywhere”, the Gauhati High Court has granted bail to 9 men in child marriages cases asking- what is POCSO offence here? The High Court has granted anticipatory bail to the accused men, noting that charges under the stringent regime of the Prevention of Children from Sexual Offences (POCSO) was not justified-
“POCSO (charge) you can add (to) anything. What is the POCSO (offence) here? Merely because POCSO is added does it mean judges won’t see what is there,” Justice Suman Shyam asked. The bench also further observed that-
“These are serious allegations. We are not acquitting anyone here. Nobody is preventing you (police) from investigating,”
The accused, a total of 9 people, hailed from Bongaigaon, Morigaon, Nagaon and Kamrup districts and all were facing charges of child marriage in four cases. It is important to know that the Assam police had slapped charges under the POCSO Act on these accused persons, making a presumption of sexual assault in case of child marriage involving girls below the age of 14. The POCSO Act prescribes a heavier penalty and carries a stricter burden in cases of sexual assault as it pertains to minors. Under the Act, Sexual assault that is not penetrative carries a minimum imprisonment of 3 years, which may extend to 5 years with a fine. The offence is non-bailable and cognisable, which means police can make an arrest without warrant.
In the case mentioned however, Justice Shyam observed that these are “not matters for custodial interrogation,” and declined the State’s claim for custody. Stating that the jails are already overcrowded and it will be futile to push such people in jails, Justice Shyam also directed the Additional Public Prosecutor that-
“You proceed under law, file a charge sheet; if he is convicted, he is convicted,”. The court delving into the issue also observed that- “This is causing havoc in the private life of people. There are children, there are family members, there are old people. This [child marriage] may not be a good idea — obviously it is a bad idea — but we will give our views when the right time comes.”
The courts also said that invoking POCSO in cases of child marriage was not right as-
“If marriage is taking place in violation of the law, the law will take its own course. These cases have been happening since time. We will only consider if immediate custodial interrogation is required or not. At this moment, this court thinks that these are not matters for custodial interrogation. We will ask them to appear and record their statements. These are not NDPS, smuggling, stolen property cases,” Calling the allegations “weird” in another case, the court sought to know if there was any allegation of rape.
The Assam police began a crackdown on child marriages across the State in February and following that, more than 3,000 people allegedly linked with such cases have been booked under relevant sections of the Prevention of Child Marriage Act read with punitive sections of the POCSO Act. These people have been taken into custody and lodged in temporary jails, including a ‘transit camp’ for ‘foreigners’ declared by special tribunals at Matia in western Assam’s Goalpara district.
Justifying its drive against the evil of child marriage, the State Chief Minister Himanta Biswa Sarma cited Assam’s infant and maternal mortality rates as well as teenage pregnancies. “The drive against this social evil will continue. We seek the support of the people of Assam in our fight against this social crime,” he said.
For a long time now, questions have been raised ion the applicability of the POCSO Act in the cases relating to child marriages. It has also been contended by the Researchers that there is no presumption of sexual assault on every case of child marriage for the invocation of POCSO Act. Not only are their issues relating to proving the actual age of the victim, many a times, they are also unwilling to testify against the accused it being a consensual relationship.
A recent study conducted in December which focussed on POCSO cases in four states, including Assam, found that one in four cases under the law are consensual and have lower conviction rates.
One of the primary reasons for invoking POCSO in child marriage cases is to prolong the jail term as it is an extremely stringent legislation wherein life imprisonment is the maximum punishment. In cases of child marriage, the facts are what they are and hence custodial interrogation is not required in most of the cases while it has been observed that the police is making mass arrests which Is further destroying families. The purpose behind enacting POCSO was primarily to safeguard children from sexual exploitation. But facts and circumstances are “totally different” in cases where the primary offence is child marriage. In most cases, it has been found that husbands and wives are happily living with children hence no questions of sexual explanation arise. In fact, protests are being made against the crackdown instituted by the State as in some of the cases, the accused have been languishing in jails for more than a year and the men arrested were the lone bread-earners in their families.
POCSO shouldn’t be invoked in these cases and this is the primary reason that many courts are rightly granting bail. Apart from the recent hue and cry over invoking POCSO in cases of child marriage, the courts have also in the past come down heavily in cases where POCSO is invoked merely to punish the boy in a consensual relationship with a girl below 18 years of age.
Justice M. Nagaprasanna of the Karnataka High Court, in a recent case, noting the ‘plethora’ of judgments that have quashed trial proceedings on account of the marriage between the parties, observed,
“If the victim is going to turn hostile in a trial at a later point in time and the petitioner gets acquitted of all the offences, the sword of crime would have torn the soul of the accused.”
There are various organisation that are conducting research with an aim to address gender-based violence and sexual abuse, through education, awareness, rehabilitative support for survivors of child sexual abuse, and restorative processes with children in schools and the juvenile justice system. These organisations have studied ‘romantic’ cases registered under the POCSO Act, to understand how they enter the criminal justice system and what is happening in these cases and it has been observed that these cases are usually initiated by the parents of these girls who approach the police with a missing complaint. Later, when she is traced, it emerges that there has been sexual contact between the girl and her partner, and that results in the inclusion of charges under the POCSO Act as well.
It has also been found that most of these underage girls are voluntarily running away from violent households, or from forced marriages, or where there is a lot of disapproval towards their romantic relationships. They also feel trapped and are dissatisfied by the lack of opportunity for them in the form of meaningful education or employment, and feel that this is their ticket out to a better life. In fact, in such situations, it is the girl that forces her male partner to elope because she feels that her parents will not agree to the relationship and get her married of to someone or else. The boy on the other hand feels compelled to rescue her from such a plight and elopes with her only to be impleaded in a rape case later on. In the event that a case is registered in such situations, one recognizes the possibility of coercion or grooming in these relationships.
However, in a large majority of relationships, there are not many or any exploitative factors. They are consensual relationships among young adolescents that have to go through the entire cycle of a police investigation, a police trial, social humiliation and isolation, and the institutionalisation that results from it. It has also been observed that a majority of these cases are ending in acquittals as the girls are not testifying against the accused and turn hostile at the time of trial. Also, along the trajectory of the case, it is found that the couple has married, and the families have accepted the relationship, but unfortunately, under the criminal justice system, there is no way of recognising this at the trial stage. Besides, not every family or couple may have access to a lawyer to approach the high court (under Section 482 of the Code of Criminal Procedure) and have these matters quashed.
Looking across the world, it has been seen that most countries recognise the possibility of those above the age of 16 years having the capacity to give a valid consent to sexual acts. In India as well, before the POCSO Act was introduced, 16 years was the age of consent. The report of the Justice J.S. Verma-led Committee on Amendments to Criminal Law of 2013 also said that the age of consent should be lowered to 16 years.
There is a need to recognise the possibility of consent in those that are above the age of 16 years. However, in cases of sexual violence against girls between the ages of 16 and 18 years, the victim should be entitled to all the protections provided for under the POCSO Act. It becomes a tough task for the authorities concerned however to isolate the cases of sexual abuse from those of consensual sex and hence the dilemma wherein all cases that involve underage girls are clubbed under POCSO.
The steps taken and the trend observed in the decisions given by the various High Courts across the country however show that charges under POCSO are not being framed blindly and extraneous factors like consent and child marriage are also being considered before an accused person is arbitrarily thrown into incarceration.
(The author is an Advocate on Record practising in the Supreme Court of India, Delhi High Court and all District Courts and Tribunals in Delhi. She has done her Doctorate in Criminal Law and is the Legal Member in the Internal Complaints Committee of various private as well as Government Organizations. She is also an empanelled advocate of various government institutions. Email: [email protected])
