Sexual Offence against Children
POSCO Act deals with sexual offences against children below 18 years of age. The act defines sexual assault and sexual harassment.
The act protects the interest of children at every stage of judicial process by incorporating child friendly procedures. It also establishes a separate court for trying juvenile offenders.
Under POSCO, a girl under 18 is a child. But under IPC, a married girl below 18 is no longer a child under Exception 2 of the Section 375 of IPC.
In the case Independent Thought v. Union of India, the Centre told the Supreme Court bench consisting of Justices Madan Lokur and Deepak Gupta that it stands by Exception 2 of Section 375 of the IPC to provide protection to the husband, his minor wife and the sanctity of their conjugal relationship.
Independent Thought, a non-governmental organisation, in a petition in 2013, had challenged Exception 2, which states that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. However, there is a discrepancy within the same provision. It states that a man is said to commit rape who has sexual intercourse with a woman with or without her consent, when she is under 18 years of age. Independent Thought’s plea to the judiciary was simple: It urged that all minors be protected from rape under Section 375, irrespective of marital status.
The discrepancy is quite apparent if one thinks about it. By law, India does not permit a woman to be legally married before the age of 18. Moreover, the penal code in India also states that consensual sex with a minor, outside of marriage, is statutory rape. This discrepancy puts girls, who are between the ages of 15 to 18 and are married, in a legal vacuum where they are unprotected by law from intrusive sexual intercourse. Ideally, there is no rational nexus in classifying girls under the age of 18 into two groups — those who are married, and those who are not.
The fact that the country’s penal code has a dangerous, almost draconian discrepancy that goes against the Constitution as well as international conventions such as the United Nations Convention on the Rights of the Child (UNCRC) does not seem to bother the judiciary at all. Moreover, the judiciary is increasingly taking on the role of protector of the institution of marriage, instead of examining issues in the context of the Constitution — more and more human rights are being thwarted upon on the pretext of traditions and cultural relativism.
The case of “mental age”
The stringent POSCO Act to deal with sexual offences against minors cannot be invoked to prosecute a man for raping a mentally-challenged adult victim having an under-developed brain like a child, the Supreme Court has held.
The apex court said that according to Section 2 (d) of the POCSO Act, the term “age” cannot include “mental” age as the intent of the Parliament was to focus on children, that is, persons who are physically under the age of 18 years. Protection of Children from Sexual Offences (POCSO) Act 2012 deals with the sexual offences against those below 18 years of age.
The court has chosen the challenging path of analysing the import of such judicial interpretation, along with the question whether expanding the notion of age is within its remit. It has ruled that it is outside its domain. POCSO is meant to protect children from sexual offences. To extend it to adult victims based on mental age would require determination of their mental competence. This would need statutory provisions and rules; the legislature alone is competent to enact them. Judicial conferment of power to trial courts to treat some adults as children based on mental capacity would, in the Bench’s opinion, do violence to the existing law protecting children from sexual offences. It noted that there may be different levels of mental competence, and that those with mild, moderate or borderline retardation are capable of living in normal social conditions.
It is now up to the legislature to consider the introduction of legal provisions to determine mental competence so victims with inadequate mental development may effectively testify against sexual offenders.