Revisiting Consent under Pocso: From a ‘Fixed-Age’ Rule to a ‘Competence Based’ Standard

Revisiting Consent under Pocso: From a ‘Fixed-Age’ Rule to a ‘Competence Based’ Standard

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Volume 16 Issue 2 ()

Under the Protection of Children from Sexual Offences Act, 2012, (‘the Act’) a minor cannot consent to sexual acts. This has brought minors in consensual relationships in conflict with the law by restricting their sexual autonomy and criminalising innocent juveniles.  This paper examines the rationale for this law and explores its consequences on minors’ relationships. It argues that the judicial interpretations of the Act have distorted the notion of a minor’s consent, leading to adverse consequences for minors in conflict with the law. To address these issues, it proposes a novel approach to a minor’s consent. It shows that the existing law creates an overinclusive and rigid ‘rule’, and a standard grounded in the minor’s competence to consent is desirable vis-à-vis the existing rule. This paper justifies this standard by demonstrating how it better accomplishes the objectives of the Act while preventing consenting minors from falling afoul of the law. It then lays down the parameters and psychological underpinnings of this standard. To demonstrate its potential for just outcomes that align with the objectives of the Act, the paper applies this standard to case laws and offers alternative decisions.

Cite as: Prem Vinod Parwani, Revisiting Consent under Pocso: From a ‘Fixed-Age’ Rule to a ‘Competence Based’ Standard, 16 NUJS L. Rev. 322 (2023)