NECESSITY TO RE-LOOK THE POCSO ACT, 2012 IN RELATION TO THE STATE OF MANIPUR
The Protection of Children from Sexual Offences Act, 2012 (in short, “the Act”) is an act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
While passing the Act, the Central Legislature has kept in mind the rising crime and commercial exploitation of children under the age of 18 years and to provide proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child and to make the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
A child has been defined in the Act in section 2(1)(d) as:- “child” means any person below the age of eighteen years. By this definition, the consent of the minor (who is below the age of 18 years) who is involved in sexual activity has been done away. Hence, anybody who is involved in sexual activity with a minor can be prosecuted under this Act even when the sexual activity had taken place with his/her consent.
In the Indian Penal Code (in short, “IPC”), kidnapping and rape has been defined as:-
“361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
State Amendment-[Manipur].- In section 361, for the words “eighteen”, substitute “fifteen”.- Manipur Act 30 of 1950, section 3.
- Rape.- A man is said to commit “rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.- Against her will.
Secondly.- Without her consent.
Sixthly.- With or without her consent, when she is under sixteen years of age.
Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
State Amendment-[Manipur].- In section 375.-
- a) in clause Sixthly, for the words “sixteen”, substitute “fourteen”; and
- b) in the Exception, for the words “fifteen”, substitute “thirteen”;.- Manipur Act 30 of 1950, section 4.
The then Legislatures of Manipur had taken care of certain sections of the Indian Penal Code by taking into consideration the prevailing culture and customary practice prevalent in the state of Manipur in order to implement the Indian Penal Code smoothly.
It is pertinent to state that as per the culture and customary practice prevalent in the state of Manipur since many centuries, elopement of a boy and a girl is prevalent with their consent in order to get married and there is also a belief that if a boy and a girl elope then any uncertain/unknown eventuality is also thwarted by the said act of elopement.
In the Act, penetrative sexual assault has been defined in section 3 as:-
- Penetrative sexual assault.- A person is said to commit “penetrative sexual assault” if-
- he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
- he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
- he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
- he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child do so with him or any other person.
The punishment for the said penetrative sexual assault is with imprisonment which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. Further in section 42A of the Act it has been stated that the Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.
The extension of the POCSO Act, 2012 as passed by the Central Legislature in the Parliament without any amendment in the state of Manipur has created a problem to the implementing agencies, i.e. the police and the judiciary. Looking into the number of cases that has been registered in the Imphal East and Imphal West for the year 2014 and 2015, it is found that about 90 cases had been registered invoking the Act, out of which about 65 cases turns out to be cases of elopement, however, as the parents of the minor girl does not want to give their daughter’s hand into marriage with the said lover boy of the girl, they are being booked under the said Act. Thus, with the advent of the Act, a lover boy who had eloped with his love ones as per customary practice had to undergo imprisonment if the girl happens to be a minor, because the parents of the girl does not want the boy to be their son-in-law.
Hence, taking into consideration the gravity of punishment in the Act and the age old customary practice prevalent in the state of Manipur, this POCSO Act needs to be re-looked by the Legislatures of the state of Manipur and make necessary state amendments wherever necessary otherwise many innocent young boys will end up in jail for an act which has been recognized and still prevailing in the state of Manipur as a customary practice for want of marriage between a boy and a girl or a man and a woman.