POCSO Act: Delhi High Court seeks Central government response on plea challenging mandatory reporting of sexual offences

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The Delhi High Court on Tuesday issued notice to the Central government on a plea challenging several provisions of the Protection of Children from Sexual Offences (POCSO) Act that requires mandatory reporting of sexual offences involving minors.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad directed the government to file its response to the plea and listed the case for completion of pleadings before the Joint Registrar in July.

The Court was hearing a public interest litigation (PIL) petition filed by advocate Harsh Vibhore Singhal challenging Sections 19, 21 and 22 of the POCSO Act.

Section 19 provides for the mandatory reporting of suspicion or knowledge of sexual offences involving minors and Section 21 prescribes imprisonment for a person’s failure to do so.

Section 22 acts as a safety valve for false reporting, if the same has been done in good faith.

The petitioner argued that these provisions are bad in law as they deprive a sexual assault survivor and other minors involved in consensual sex of the right to give informed consent for such reporting.

These provisions take away the agency over their bodies, infringe upon the fundamental right to life and liberty, violate their right to privacy and focuses avoidable attention on consensual sexual acts, the petitioner contended further.

“… the law is well settled that neither law, nor police nor any court can force a sexual assault survivor to report an offence by filing an FIR and no police or court can force any minor in consensual sex to report her sexual activity. Thus, the Impugned Sections requiring mandatory reporting are untenable, arbitrary and unconstitutional and deserve to be set aside,” the petition argued.

The petitioner added that the mandatory reporting prescribed under the POCSO Act discourages minors and grown-up women from seeking prenatal, reproductive and sexual healthcare.

“…consensual sexual acts by under 18 minors fall squarely within the penumbra of the right to privacy which has also been recognized by a 9 judge SC bench in Puttaswamy v. Union of India”, the petitioner stated.

The petitioner, therefore, urged the Court to declare the provisions under challenge as unconstitutional.

Further, the petitioner called on the Court to direct the police to obtain the consent of the victim before any first information report (FIR) concerning sexual conduct is registered.

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