Critical Analysis of Protection of Children from Sexual Offences Act, 2012
However, The Protection of Children from Sexual Offences Act, 2012 is provide protection to child from almost all kind of sexual offences but still left with some unpleasant clauses which need to be cured for better implementation. The some of this issues are as follows:-
Age of Consent
- The Act define child as every person below 18 yrs and provide protection to every child below 18 yrs from various kinds of sexual offences such as sexual assault, Penetrative sexual assault, sexual harassment, pornography etc. No space is left for consensual sex in this act for child age of above 16 yrs.
- The Section 375 of Indian Penal Code (IPC) 1860 states that any sexual intercourse with a woman who is below age of 16 yrs is considered to be rape. The consent of the person is irrelevant. But above 16 yrs old, the consensual sex can be permitted or not led to rape.
- This act makes it that any consensual sexual activity with woman or child below 18 yrs is a punishable crime under this act. The experts are against this provision to define age of maturity or consent is really not justiciable in this modern technical world.
- The Section 375 of IPC states that a husband having sex with his wife shall not be considered as rape provided that age of wife shall be more than 15 yrs. Here is again confusion because this act states that any sexual activity with child who is below 18 yrs is a punishable crime.
- Pre Marital relationships especially among those above 16 yrs is on rise and recent study by International Institute for Population Studies (IIPS) on age group 15 to 24 yrs shows that 88% of young men held hand with a romantic partner and just 42% had sex with partner; while among women 75% held hands with their partner and just 26% had engaged in sexual relations.
- The Act is silent if both the person’s victim and accused (who are indulged in a sexual activity) are of age of below 18 yrs then what will be the consequences. It means if two adolescent children below 18 yrs (male and female) has sexual intercourse with their consents then what will be the punishment.
- Opponents of increasing the age of consent pointed out that since this Act criminalises any sexual activity with persons under the age of 18 years (even if consensual), the police may misuse it to harass young couples or parents may use this law to control older children’s sexual behaviour.
- Also act says that reporting of case is mandatory by anyone (include family, neighbours, NGOs etc.) who has information or idea of offence otherwise he or she shall be liable for punishment up to 6months. This provision can be used by family members or neighbours against adolescents who are in consensual love relationship and environment of fear can be transmitted in man dominated society of India.
- The age of consent shall be changed to 16 years and premarital relationship requires more legal debate and emphasis in India. In most of the countries, age of consent is varies from 13 to 18 yrs. For example in USA from 16-18 yrs varies from state to state, UK – 16 yrs (2003), France – 15 yrs, Brazil – 14 yrs (2009), Canada – 16 yrs and China – no age of consent but sex with girl below 14 is considered to be rape.
- The clause under section 375 of IPC for age of wife is more than 15 yrs shall be amended to 18 yrs as age of Marriage under Hindu Marriage act and Child Marriage Restraint act is 18 yrs.