Apex Court Issues Notice On PIL Against Liberal View Taken By Courts In POCSO Cases Involving 'Consensual' Relationship Between Minors

The Supreme Court, on Friday, issued notice in a Public Interest Litigation against the approach of Law enforcement agencies and the Judiciary taking a liberal view, misunderstanding the POCSO Cases between minors as consensual teen relationships due to incorrect data published by various NGOs and Governments concerning elopement and romantic relationship cases among minors.

The PIL challenges a circular memorandum in December 2022 by the DGP of Tamil Nadu directing police officials to not show haste in arresting the accused in POCSO cases involving romantic relationships among minors. The plea says that the State has relied on flawed methodologies to claim that 60% of such cases fall within the category of romantic relationships. 

Tamil Nadu issued The Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra in its order said, "Issue notice. Tag with Special Leave Petition (Criminal) Diary No 26834 of 2022". The Bench tagged the present PIL with the SLP filed by the National Commission of Protection of Child Rights [NCPCR v. Gulaam Deen] challenging a decision of the Punjab and Haryana High Court has held that a Muslim girl can marry at the age of 16 as per the Mohammedan Law. 

Senior Advocate H.S. Phoolka along with Advocate-on-Record Jagjit Singh Chhabra appeared for the Petitioner organization. 

The present PIL filed by an organization, Bachpan Bachao Andolan (BBA) seeks enforcement of the fundamental rights of the most vulnerable members of society i.e., children who are subjected to sexual exploitation and abuse. The PIL seeks stricter implementation of the POCSO Act.

It is contended in the PIL that the interest of a large number of child victims of sexual abuse, especially girls is being jeopardised due to the dissemination of misinterpreted and incorrect data by various NGOs and Governments, concerning elopement and romantic relationship cases under the POCSO Act. It is contended that this data has misled various state authorities, law enforcement agencies, and courts, resulting in insensitivity, including unnecessary observations and spontaneous, flippant, or off-the-cuff remarks. 

"Furthermore the writ is also necessitated from the fact that there is an increased belief among the law enforcement and judicial circles that the POCSO Act is being misused and that the majority of POCSO cases are resulting from consensual relationships between teenagers and are of elopement which is far from reality", reads the PIL. 

It has also been highlighted in the PIL that despite official facts and figures, various NGOs, Governments, and/or law enforcement authorities have wrongly interpreted and stated that 60% to 70% of POCSO cases pertain to consenting minors and fall under the category of "Consensual Romantic -Relationship" between teenagers that often get criminalised.

"One such example is the Tamil Nadu Government, which has recently relied on flawed methodologies to claim that 60% of cases fall within the category of mutual romantic relationships. The Office of the Director General of Police, Tamil Nadu issued a circular memorandum dated 03.12.2022 inter-alia directing the police officers to not show haste in effecting an arrest of the accused in mutual romantic cases. This clearly reveals the magnitude of disparateness during the judicial interpretations or discourses amongst law enforcement agencies. Issuance of such notifications/circulars creates ambiguities and superficial impunities while dealing with such cases of sexual abuse of victims aged 16-18 years", states the PIL.

Further, it also emphasized the news report published in The Hindu on September 23, 2022, where the  Superintendent of Police, Law and Order, Puducherry stated that approximately 70% of the cases registered under the POCSO Act consist of a combination of elopement and child marriage cases.

The organization has also stated that contrary to the spirit and purpose of the POCSO Act, law enforcement agencies and Courts, in most of the cases where the victim is between the ages of 16-18 years, have drawn a presumption that the incident involves a consensual and romantic relationship between the victim and the accused. Consequently, a liberal view is taken either by the investigating agency or by the Courts while dealing with the bail applications and recording testimony quashing petitions etc. of the accused.  

The PIL categorically prays to instruct the Department of Justice to conduct mandatory sensitization programs for judicial officers; the National Commission for Protection of Child Rights (NCPCR) to provide regular reports detailing the status of POCSO cases and direction on the Courts to refrain from framing and expressing observations regarding the minor victim's casual relationship, promiscuous attitude while dealing with the criminal proceedings under the POCSO Act.

Cause Title: Bachpan Bachao Andolan v. Union of India & Ors. [Writ Petition(s)(Civil) No(s). 814/2023]

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