Interaction with POCSO Act 2012:
POCSO stands for The Protection of Children from Sexual Offences Act. As the name suggests, the Act has been created to protect children against sexual violence and prosecute sexual offences. The Protection of Children from Sexual Offences Act was enacted in 2012. The POCSO Act was imperative to bring about a child-centric Act that focused on sexual assault, sexual harassment, pornography and also to protect the child through the different stages of the judicial process.
The POCSO Act seeks to protect children, i.e., any person below the age of the 18, from sexual abuse. So, even if two young people, say, a 16 and a 17-year-old, engage in consensual sexual activity, that will be counted as a crime under POCSO, since the law does not recognise the sexual agency of anyone below 18 years of age. If the people in the above example go to seek SRH services, POCSO would make it mandatory for the service providers to report sexual encounters by minors. Suppose a person knows of an instance and doesn’t report it, they are liable to face 6 months in prison or a fine or both. A failure to report is considered a crime under Section 21 of the Act. This has resulted in making the delivery of SRH services by the service providers like HIV testing or abortion to people below the age of 18, very difficult.
Therefore, it is important that laws like POCSO which are meant to protect from sexual abuse do not take away the sexual autonomy of young people or criminalise consenting relationships of young people. Furthermore, since accessing abortions becomes difficult as the medical practitioner is bound to report it, this puts minors at risk. When coupled with the guardian’s consent clause of the MTP Act, the mandatory reporting clause of POCSO worsens the stigma around sexuality of minors.
The intersection of the MTP Act and the POCSO Act creates a lot of confusion, delays and often leads to denial of safe abortion services. When the two laws are combined, every teenage pregnancy then is liable to be reported as sexual abuse.
Interaction with PCPNDT Act 1994:
Access to safe abortions is complicated further by another piece of legislation – The PCPNDT Act. The Pre-Conception and Pre-Natal Diagnostic Techniques Act was enacted in 1994 with the purpose of curbing sex-selective abortions or ‘female foeticide’ and control the skewed sex ratio of the country. As per this Act, any form of prenatal sex determination is banned. There is a widespread preference for male children in the Indian society. Any clinic or service engaged in any form of prenatal diagnostic techniques with a potential of conducting sex determination, either before or after conception, comes under this Act and such techniques are prohibited. The Act also regulates and restricts the usage of these techniques to detect genetic anomalies, metabolic disorders, chromosomal anomalies, specific congenital malformations and sex-linked disorders. The basic idea is to prevent any technique which can potentially reveal the sex of the foetus.
So how is the PCPNDT Act linked to abortion? Well, many medical practitioners deny abortion services out of the fear that the abortion-seekers may be motivated by male preference. Access to abortions therefore, becomes difficult because medical practitioners are wary of providing abortion services as they suspect that the person might be seeking an abortion because they don’t want to have a female child. Due to stringent implementation of the law, the practitioners are apprehensive of the legal ramifications if the foetus is female and worry that this might lead to criminal charges and prosecution.
In addition to the legislation, many awareness campaigns have also been launched to highlight “female foeticide”. But these campaigns may be problematic as they are couched in the patriarchal narrative that a future mother or daughter must be ‘saved’.
