Contradiction with the Medical Termination of Pregnancy Act, 1971 The Protection of Children from Sexual Offences Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation. Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police. However, under the
Medical Termination of Pregnancy Act, it is not mandatory to report the identity of the person seeking an abortion. Consequently, service providers are hesitant to provide abortion services to girls under 18.
Mandatory reporting According to the Act, every crime of child sexual abuse should be reported. If a person who has information of any abuse fails to report, they may face imprisonment up to six months or may be fined or both. Many child rights and women rights organizations have criticized this provision. According to experts, this provision takes away agency of choice from children. There may be many survivors who do not want to go through the trauma of the criminal justice system, but this provision does not differentiate. Furthermore, mandatory reporting may also hinder access to medical aid, and psycho-social intervention. It contradicts the right to confidentiality for access to medical, and psychological care.
Definition of child The Act defines a child as a person under the age of 18 years. However, this definition is a purely biological one, and does not take into account people who live with intellectual and psycho-social disability. A recent case had been filed in the
SC where a woman, whose biological age was 38 years but with mental age of 6 years, was raped. The victim's advocate argued that "failure to consider the mental age will be an attack on the very purpose of act." SC held that the Parliament has felt it appropriate that the definition of the term “age” by chronological age or biological age to be the safest yardstick, rather than referring to a person having intellectual disability. The court said while awarding maximum compensation to a rape victim who is 38 years old with a mental maturity of 6 to 8 years but rejecting the plea that the victim's age should be taken not just in physical terms, but also take into account her mental age as well. The victim has
cerebral palsy.
Legal aid Section 40 of the Act allows victims to access
legal aid. However, that is subject to
Code of Criminal Procedure. In other words, the lawyer representing a child can only assist the Public Prosecutor, and file written final arguments if the judge permits. Thus, the interest of the victim is often unrepresented.
Criminalization of consensual relationships The law presumes that all sexual acts with children under the age of 18 is a sexual offence, this also includes sexual acts where both the individuals are under the age of 18. Therefore, two adolescents who engage in consensual sexual acts will also be punished under this law; this coupled with the need for mandatory reporting has led to the criminalisation of consensual relationships between adolescents. This is especially a concern where an adolescent is in a relationship with someone from a different
caste, or
religion. Parents have filed cases under this Act to 'punish' relationships they do not approve of. In a 2015 analysis of 142 sexual assault cases in sessions courts of Mumbai, police were found misusing the act in 33 cases, by classifying women who were 18 years old as being between 15 and 18 years of age in their
FIRs, in order to criminalise consenting relationships at the request of the parents of the girl. In contrast to the 2011 act, an earlier draft of the bill in 2001 did not punish consensual sex if at least one of the partners were above the age of 16, as did section 375 of the
Indian Penal Code. The change from this to the age of 18 in the final act was criticized at the time as it was feared that this would allow and encourage unjustified complaints aimed at penalizing consensual relationships. == Landmark Judgments under POCSO Act, 2012 ==