The Delhi High Court on Tuesday issued notice to Centre on a petition challenging various provisions of the POCSO Act, 2012, which require mandatory reporting to police or the filing of a FIR in cases of consensual sex involving minors.
A division bench led by Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad asked the Centre to respond within eight weeks through the Ministry of Law and Justice.
The petition, filed by Advocate Harsh Vibhore Singhal, challenges the constitutional validity of sections 19, 21, and 22 of the POCSO Act as being violative of Article 21 of the Indian Constitution.
According to the PIL, the contested provisions deprive minors of their legal agency and decision-making capacities to make informed choices about their sexuality and sexual expression, as well as competence to give informed consent about whether or not to report such cases against them.
“The provisions require ‘by any person’ to report suspicion or knowledge of sexual offences involving under 18 minors to the police under section 19, prescribes imprisonment under section 21 for failure to do so, and provides a neat safety valve under section 22 for false reporting or giving false information if done in good faith!”, the plea stated.
The petition contends that the challenged provisions violate minors’ right to privacy by mandatorily reporting them despite informed consent for refusal to report and also force them to risk life and limb “by visiting quacks fearing that approved medical centres would report and haul them into criminal process.”
It further added that no police officer or court can force a minor who is having consensual sex to report the sexual activity, and that mandatory reporting “discourages minors and grown-up women” from seeking prenatal, reproductive, and sexual healthcare.
Submitting that there is also a proclivity for exploitation and extortion in the organized systems of healthcare in mandatory reporting, the plea stated, “POCSO is to protect minors from rapacious sexual offences and sexual violence by predators, pedophiles and criminals and does not aim to criminalize consensual sex. Even in sexual offences, survivors have agency to give informed consent for not reporting. With fast changing society norms, 16 to 18 year olds (and even 14 and 15 year olds) are exploring their sexuality by bold physical experimentation. Embroiling them in criminal cases is a testimony of complete disconnect with reality.”
The petition seeks a declaration that, before any act of sexual conduct is registered as a FIR at any police station, the minor victim’s express consent or consent through a guardian [if under the age of 12] must be obtained as a condition precedent.
A directive is also sought from the Central Government to harmonise conflicting and divergent laws relating to patient confidentiality and reporting requirements for sexual offences under various statutes, including the MTP Act and the CrPC.
