‘My crime is I fell in love’: should India rethink tough laws on underage sex?

M ani*, 21, began dating Noor*, 17, two years ago. They couldn’t see each other during the Covid lockdowns, but when restrictions began to ease, they would meet on the deserted banks of a canal in a small town in Tamil Nadu. The couple hoped to marry one day, but then Noor fell pregnant, and life turned into a nightmare.

Two months ago, Mani was charged with rape under the Protection of Children from Sexual Offences (Pocso) law. After 48 days in jail, he was released on bail. If convicted, he faces life imprisonment.

“I just want this to be over soon,” he says nervously, his eyes bloodshot from lack of sleep.

The Pocso law was introduced in India in 2012 to tackle rising child sexual abuse. Under the law, any sexual activity involving a person under 18 is illegal. It makes no allowances for sexual relationships between consenting young people, which child rights activists say is punitive and not the intention of the law.

Activists are now calling for the law to be clarified to allow for a more nuanced understanding of young people’s sexuality.

“Call it teenage romance, infatuation, sexual exploration or love, it’s illegal in India,” says Andrew Sesuraj, child rights activist and convenor of Tamil Nadu Child Rights Watch.

Data shows that 47,335 cases were registered in 2019 under the law. Conviction rates the same year stood at 34.9%. Figures for 2020 have yet to be published, but media reports indicate that lockdown restrictions have led to a rise in cases filed under the Pocso Act. Activists say that young people faced increased scrutiny of their lives after the pandemic forced them to stay at home with family.

Although there is no data on the age of those charged under the law, activists believe that many of the accused are young men and teenage boys in consensual relationships with teenage girls.

Girls are usually regarded as victims, so are rarely charged under the law. They are often considered incapable of giving consent.

Activists say the law is often used by police and families to punish young people if they don’t approve of a relationship.

“A lot of cases are filed because the couple belong to different castes, classes or faiths,” says Sesuraj.

Swagata Raha, from Enfold Proactive Health Trust, a Bengaluru-based nonprofit organisation working on child rights, says: “There’s a lot of stigma around premarital sex, and people perceive this as a moral issue.” A girl’s virginity and chastity are matters of family and community “honour” in most of India, she adds.

But criminalising consenting relationships between youths can have a devastating impact on the lives of young people, who are often unaware of the law.

Cases can take years to come to trial: more than 90% of Pocso cases are waiting to be heard. Education is disrupted, careers are jeopardised and young people are stigmatised for the rest of their lives, regardless of whether they are convicted, Raha explains. Some teenagers are sent to children’s remand homes until their cases come to court.

Mani has already faced verbal abuse and has been stigmatised in his community.

The law can also deter sexually active teenage girls from seeking medical help in the event of pregnancies or sexually transmitted diseases, because it is compulsory for doctors to inform the police of all teenage pregnancies.

“Most cases take two to three years to reach trials. It is not uncommon that many couples [accused of underage sex] may even marry and have kids before that,” says Raha.

“What are we really doing in the name of protecting the child?” she says.

The call by campaigners to clarify the law was backed in January by a judge at the Chennai high court, Justice N Anand Venkatesh, who said: “Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender was never the objective of the Pocso Act.” An accused will have no defence if the criminal case is taken to its logical end, he noted.

Vithya Shankar, a rights advocate who has handled Pocso cases, observes that lower courts are greatly influenced by the public mood, sentiments and press coverage of such cases. The high courts instruct the district judges to convict as many as possible. “Many times it ends in injustice to the accused,” he says.

Noor is planning to keep their baby, but Mani’s fate lies in the hands of a judge. “I have caused too many problems for my family,” he says, his eyes welling up. “My crime is that I fell in love. We want to get married some day.”

* Names have been changed