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A Double-edged Sword?

The Gauhati HC’s anticipatory bail to nine men accused under POCSO shows there is no presumption of sexual assault in every case of child marriage. Most are consensual and need to be handled with care.

By Dr Swati Jindal Garg

Martin Luther King said: “Injustice anywhere is a threat to justice everywhere.” Justice was meted out recently when the Gauhati High Court granted bail to nine men in child marriage cases and asked: “What is the POCSO (offence) here?”

Assam has been on the boil as many men have been picked up for marrying underage girls. The High Court granted anticipatory bail to the nine accused men, noting that charges under the stringent Prevention of Children from Sexual Offences (POCSO) was not justified. It said: “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 further observed: “These are serious allegations. We are not acquitting anyone here. Nobody is preventing you (police) from investigating.”

The accused hailed from Bongaigaon, Morigaon, Nagaon and Kamrup districts. The Assam police had slapped charges under the POCSO Act on them, making a presumption of sexual assault in case of child marriage involving girls below 14 years. 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 three years, which may extend to five years with a fine. The offence is non-bailable and cognisable, which means the police can make an arrest without warrant.

In the case mentioned above, Justice Shyam observed that these are “not matters for custodial interrogation,” and declined the State’s claim for custody. He said that jails were already overcrowded and it would be futile to push such people into jails.

Justice Shyam also directed the Additional Public Prosecutor: “You proceed under law, file a charge sheet; if he is convicted, he is convicted.” The Court observed: “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 Court also said that invoking POCSO in cases of child marriage was not right. “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,” it said. 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 in February and following that, more than 3,000 people were booked under relevant sections of the Prevention of Child Marriage Act read with punitive sections of the POCSO Act. They were 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 child marriage, 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, questions have been raised on the applicability of the POCSO Act in cases relating to child marriages. It has also been contended by researchers that there is no presumption of sexual assault in every case of child marriage for the invocation of POCSO Act. Not only are there issues relating to proving the actual age of the victim, many a time, they are also unwilling to testify against the accused as it was a consensual relationship.

A recent study in December which focussed on POCSO cases in four states, including Assam, found that one in four cases under the law is consensual and has 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. Custodial interrogation is not required in most of the cases.  

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, husbands and wives are happily living with their children, hence, there is no question of sexual exploitation. No wonder there are protests against the Assam government’s crackdown. In some cases earlier, the accused have been languishing in jails for more than a year and they were the lone breadwinners in their families. POCSO shouldn’t be invoked in these cases and this is the primary reason why many courts are granting bail. Courts have 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.

Justice M Nagaprasanna of the Karnataka High Court noted the “plethora” of judgments that have quashed trial proceedings on account of the marriage between the parties and 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 organisations conducting research with the 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. It has been observed that these cases are usually initiated by the parents of the 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, forced marriages or where there is disapproval towards their romantic relationships. They also feel trapped and are dissatisfied by the lack of opportunity in terms of education and employment, and feel that this is their ticket to a better life. 

In fact, in such situations, it is the girl who forces her male partner to elope because she feels her parents may get her married to someone else. The boy feels compelled to rescue her and elopes with her only to be impleaded in a rape case later. Such consensual relationships have to go through the entire cycle of police investigation, trial, social humiliation and isolation. In a majority of these cases, there are acquittals as the girls don’t testify against the accused and turn hostile at the time of trial. It has also been found that after the couple has married, families accept the relationship, but unfortunately, under the criminal justice system, there is no way of recognising this at the trial stage. Many don’t have access to a lawyer either to quash the case.

Most countries recognise the possibility of those above 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 JS Verma-led Committee on Amendments to Criminal Law of 2013 also said that the age of consent should be lowered to 16.

However, in cases of sexual violence against girls between the ages of 16 and 18 years, the victim should be entitled to all the protection provided for under the POCSO Act. However, it is tough for authorities to isolate cases of sexual abuse from those of consensual sex and hence, all cases involving underage girls are clubbed under POCSO.

However, nowadays under POCSO, charges are not 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, Delhi High Court and all district courts and tribunals in Delhi

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