There is a normative basis and rationale for treating adolescents differently from younger children. The National Policy for Children, 2013 states that “children are not a homogenous group and their different needs need different responses.” The Committee on the Rights of Child (CRC), the expert body tasked with implementation and interpretation of the Convention on the Rights of the Child has also recognized that “the rights of adolescents differ significantly from those adopted for younger children.”
Interestingly, in India, this distinction has also been statutorily recognized by the legislature in the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 15 read with Section 18(3) of the Act prescribes that an adolescent between the age of sixteen to eighteen years accused of committing a heinous offence may be treated and tried as an adult.
To determine whether or not to treat such a child as an adult, the Juvenile Justice Board (JJB) is empowered to conduct a preliminary assessment “with regard to his [juvenile’s] mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence”. For the purpose of such assessment, the JJB is required to take assistance of experienced psychologists or psycho-social workers or other experts.
The exception carved out for adolescents in the JJ Act exposes the double standards within the criminal justice system. On the one hand, when it comes to prosecuting adolescents for heinous crimes, the State has carved out an exception to treat them as adults, while on the other hand, when it comes to recognizing their sexual agency, the State treats them as a homogenous class. This arbitrary classification sheds light on the paternalistic approach adopted by the State while dealing with consensual and non-exploitative sexual activities of adolescents of similar age. This approach is not consistent with the obligations under the Convention (in furtherance of which POSCO was enacted), which envisages striking a balance between the evolving capabilities of adolescents and levels of protections for them.
In view of the rampant abuse of POCSO by families of adolescents and the experience of the courts in dealing with romantic relationships, there is an urgent need to take remedial steps keeping in mind the best interests of the children. If a complete reduction of age of consent seems like a significant departure from the status quo in view of competing concerns, it is at the very least necessary to carve out an exception for adolescents between the age of sixteen to eighteen in romantic relationships. Such an exception can be further qualified by a close age-gap requirement, i.e. the difference in age between the parties being less than a prescribed number (24 or 36 months as appropriate). Similar clauses find applicability internationally in countries, including the United States, Canada and Australia etc. Further, to reduce subjectivity, the courts can take the assistance of trained psychologists and other experts in making an assessment of the adolescents to determine the nature of relationship, including capacity to consent, or existence of any factors such as child grooming, tutoring or existence of threat, fraud or coercion, that could vitiate consent in any manner.
Source: Barandbench
