JOURNAL OF THE NATIONAL HUMAN RIGHTS COMMISSION, INDIA
VOL. 21, 2022
The alternatives must begin with primary prevention measures, such as support for
disadvantaged and at-risk families and early childhood initiatives proposed alternatives
to detention such as community-based diversion programmes. There must be criteria laid
down for staff selection; training and remuneration accountability; registration, monitoring
and investigation; and complaint mechanism for children in the criminal justice system. The
victims and witnesses must be protected outside the courtrooms as well, while travelling
back and forth to the courts and in institutions, before and after trial and conviction of the
accused.
The POCSO Act was never intended to prosecute teen romance.
Article 12 of the Universal Declaration of Human Rights (“UDHR”), of which India is a
signatory, holds that everyone has the right to the protection of the law against arbitrary
interference with his or her privacy. Consensual sexual acts fall under the purview of right to
privacy of a human being. This has been recognised under Article 21 as a Fundamental Right
by the judgement of the Supreme Court in the landmark case of Justice Puttaswamy v. Union of
India (2017).65 Considering consensual sexual acts as a crime violates the right to privacy of
the minors, in addition to other rights of the children.
There is a need for law reform to revise the age of consent and prevent the criminalisation
of older adolescents engaging in factually consensual and non-exploitative acts. In order to
change the age of consent and avoid criminalising older teenagers, who engage in factually
consensual and non-exploitative behaviours, the age of sexual consent must be lowered to 16
years. Most of the American states, Europe, Japan, Canada, Australia, China, and Russia have
16 years as the age of consent. There must be guidelines laid down for mandatory reporting.
As stated in the Convention on the Rights of the Child, every child deprived of his or her
liberty shall have the right to prompt access to legal and other appropriate assistance. The
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems
provide specifically that States should establish child-friendly legal aid systems that enable
children to contact their parents or guardians at once and to prohibit any interview in the
absence of a parent or guardian, and lawyer or other legal aid provider.
65
68
AIR 2017 SC 4161