The Protection of Children from Sexual Offences Act, 2012 (POCSO) defines all persons under the age of 18 as ‘children’. By making children’s consent irrelevant to the definition of its offences, the statute creates the legal fiction that all sexual contact with a child, so defined, is non-consensual. Green argues that statutory rape offences (which criminalise sexual contact based on age alone, regardless of consent, like POCSO) are instances of overinclusive criminalisation.
As security agencies continue to indiscriminately invoke provisions of the Act, courts must remember to adopt interpretations jurisprudentially closer to the principle of ‘bail, not jail’. By looking beyond the facts of a given case, the courts are likely to create a more equitable, and accessible, system of justice and ensure opportunities to do complete justice are not missed.