The tragic Nirbhaya Gang Rape Case revolutionised Indian Criminal Law with the enactment of the Protection of Children from Sexual Offences Act (POCSO Act) in 2012. The primary objective of this act was to establish a protective shield for children against various forms of sexual assault and harassment. Additionally, it aimed to criminalise any sexual activity involving individuals under the age of 18 years, by explicitly prohibiting all sexual activities, whether penetrative or non-penetrative, for individuals under the age of 18, as opposed to 16 years, irrespective of consent. However, a notable grey area emerged with the increase in the age of consensual sex from 16 to 18 years by disregarding adolescents’ inherent right to sexual autonomy. The right to sexual autonomy of adolescents includes the right to engage in consensual sexual activities and the right to be protected from sexual assault as elucidated by the court in XYZ v State of Maharashtra. In this case, the court emphasised that recognising both dimensions of adolescents’ rights is integral to the complete respect of human sexual dignity.

Setbacks of the POCSO Act on the Right of Abortion of Adolescents 

The POCSO Act introduced a new provision, Section 19(1), mandating that individuals with knowledge or a reasonable belief that an offence punishable under the act has occurred, or is likely to occur, report the matter to the police. This requirement aims to address the issue of underreporting of child sexual abuse. However, the mandatory reporting provision of the POCSO Act creates legal barriers for adolescents impregnated from consensual sex, hindering their exercise of the right to abortion. They fear that consensual sexual acts will be reported as crimes by obligated doctors to officials, potentially leading to legal consequences for their partners: their partners would thus be subjected to a minimum of 20 years’ imprisonment, with a maximum punishment of death, under Section 5(j)(ii) for the aggravated crime of pregnancy resulting from sexual activity. This challenging situation forces adolescent girls to choose between three options: seeking an abortion from a medical facility while risking prosecution of their partner under the POCSO Act; foregoing an abortion altogether and proceeding with the pregnancy without prenatal care; or opting for an abortion from an unsafe or illegal facility.

The challenges faced by adolescent girls in the consensual relationship and the subsequent birth of a child were addressed in Probhat Purkait v State of WB, in which the court expressed that “by equating consensual and non-exploitative sexual acts with rape and (aggravated) penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents.” This, in turn, has repercussions for the sexual and reproductive health rights of adolescents by constraining their ability to access safe abortion services without legal consequences.

The right to abortion for every woman is a facet of the right to life under Article 21 of the Indian Constitution, and has been affirmed by the Bombay High Court in High Court on its Own Motion v State of Maharashtra. In India, the right to access safe and legal abortion, thereby safeguarding women’s physical and reproductive well-being, is protected and governed by the Medical Termination of Pregnancy Act, drafted in alignment with Article 12 of the Convention on the Elimination of Discrimination Against Women (CEDAW).

The Way Forward

The POCSO act myopically deprives adolescent girls of the rights to autonomy, bodily integrity, privacy, and dignity, by establishing a framework of societal and medical scrutiny and authority over women’s sexual and reproductive behaviour. As such, the Act compels pregnant adolescents to engage in illicit and unsafe means of abortion by restricting their access to safe abortion services. To address this barrier, there is a pressing need to re-examine the age of sexual consent in India: UNICEF recommends moderating the age of sexual consent to refrain from inadvertently penalising consenting adolescents. It is critical to understand this issue in light of the related right to abortion, so that legislative reforms are synchronised with the practices of the judicial system, in order to secure the right of adolescent girls to be provided with safe abortion.