Protection of Children from Sexual Offences (POCSO) Act is being misused by families to control the identity of their child who might be queer and to threaten queer organisations who step in to support the minor.
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On an otherwise usual day of April 2024, Sappho For Equality, a feminist NGO in Kolkata working for the rights of sexually marginalised women and trans men, received an urgent call.
The call was from a peer organisation in Patna requesting Sappho to intervene in a crisis they were facing. The local police had arrested a 19-year-old transmasculine person, Megh*, charging him with abduction of a 17-year-old cisgender girl, Brishti*, after eloping with her. Sappho’s managing trustee, Koyel Ghosh told me about the case, explaining that Megh and Brishti were in a consenting romantic relationship. Brishti’s family had filed the abduction case against Megh and then the police had invoked the Protection of Children from Sexual Offences (POCSO) Act against Megh, said Ghosh.
Megh was later placed in the Alipore Women’s Correctional Home because most prisons in India don’t have separate cells for trans people, leaving them vulnerable to discrimination and unsafe conditions. Despite the Ministry of Home Affairs’ January 2022 advisory to all Union Territories and States in India to prevent discrimination against trans people in prison and correctional facilities, many governments still haven’t implemented the advisory.
Enacted in 2012, POCSO is a landmark legislation designed to protect children from sexual offences. But sometimes it is also misused by the police and the public. For example, instances of the police slapping POCSO on romantic cases involving adolescents, where the minor “victim” acknowledges a consensual relationship with the accused, are plenty.
In April 2021, Enfold, an organisation that intervenes in cases of sexual violence against children, initiated a comprehensive analysis of how the statutory rape laws under POCSO and the Indian Penal Code were used specifically in romantic cases. The study, supported by UNICEF India, looked at 7,560 cases disposed of by special courts in Assam, Maharashtra and West Bengal between 2016 and 2020. Of those cases, the analysis revealed that 1,715 were “romantic cases” under POCSO, in which over 1,000 minor girls had fled their homes with the person they said they were in love with. In all instances except one, the “victims” were girls and the primary accused were men. In 80% of all romantic cases, it was the parents or relatives of the girls who had filed POCSO charges against the accused, with the intention of separating the couple.
Although the report is largely about heterosexual people in romantic relationships, legal and child rights experts who have looked at romantic cases between queer people say that POCSO has often been used to dismiss and control the gender and sexual identity of queer people in a relationship. “In some POCSO cases involving queer-trans persons, the primary concern for some parents who report these cases isn’t necessarily the sexual abuse of their child which would have been anyway important to report if abuse were happening. Instead, it’s largely about their disapproval of their child’s sexual or gender identity and expression,” Mihir Samson, a human rights lawyer, told me. “When their child is in a consensual queer relationship, POCSO becomes a tool for them to break up the relationship and control their child’s identity.”
On an otherwise usual day of April 2024, Sappho For Equality, a feminist NGO in Kolkata working for the rights of sexually marginalised women and trans men, received an urgent call.
The call was from a peer organisation in Patna requesting Sappho to intervene in a crisis they were facing. The local police had arrested a 19-year-old transmasculine person, Megh*, charging him with abduction of a 17-year-old cisgender girl, Brishti*, after eloping with her. Sappho’s managing trustee, Koyel Ghosh told me about the case, explaining that Megh and Brishti were in a consenting romantic relationship. Brishti’s family had filed the abduction case against Megh and then the police had invoked the Protection of Children from Sexual Offences (POCSO) Act against Megh, said Ghosh.
Megh was later placed in the Alipore Women’s Correctional Home because most prisons in India don’t have separate cells for trans people, leaving them vulnerable to discrimination and unsafe conditions. Despite the Ministry of Home Affairs’ January 2022 advisory to all Union Territories and States in India to prevent discrimination against trans people in prison and correctional facilities, many governments still haven’t implemented the advisory.
Enacted in 2012, POCSO is a landmark legislation designed to protect children from sexual offences. But sometimes it is also misused by the police and the public. For example, instances of the police slapping POCSO on romantic cases involving adolescents, where the minor “victim” acknowledges a consensual relationship with the accused, are plenty.
In April 2021, Enfold, an organisation that intervenes in cases of sexual violence against children, initiated a comprehensive analysis of how the statutory rape laws under POCSO and the Indian Penal Code were used specifically in romantic cases. The study, supported by UNICEF India, looked at 7,560 cases disposed of by special courts in Assam, Maharashtra and West Bengal between 2016 and 2020. Of those cases, the analysis revealed that 1,715 were “romantic cases” under POCSO, in which over 1,000 minor girls had fled their homes with the person they said they were in love with. In all instances except one, the “victims” were girls and the primary accused were men. In 80% of all romantic cases, it was the parents or relatives of the girls who had filed POCSO charges against the accused, with the intention of separating the couple.
Although the report is largely about heterosexual people in romantic relationships, legal and child rights experts who have looked at romantic cases between queer people say that POCSO has often been used to dismiss and control the gender and sexual identity of queer people in a relationship. “In some POCSO cases involving queer-trans persons, the primary concern for some parents who report these cases isn’t necessarily the sexual abuse of their child which would have been anyway important to report if abuse were happening. Instead, it’s largely about their disapproval of their child’s sexual or gender identity and expression,” Mihir Samson, a human rights lawyer, told me. “When their child is in a consensual queer relationship, POCSO becomes a tool for them to break up the relationship and control their child’s identity.”
Typically, romantic cases filed under POCSO are often referred to as “technical cases” in courtrooms, police stations and Child Welfare Committees (CWC) in India, said Persis, a lawyer and director at RATI Foundation for Social Change, a Mumbai-based NGO that creates safe spaces for children and women.
She elaborated that in POCSO cases where both individuals are minors, the boy is usually labelled as the perpetrator, and the girl becomes the victim. The boy, depending on their age, might end up in the juvenile justice system–a set of laws, procedures and institutions that work with non-adult offenders. If they are over 18, they are sent to the general criminal justice system. Meanwhile, the girl is usually sent to a shelter home or a child care institution under the juvenile justice system, where they are counselled, and depending on the case, provided with other support including financial aid. After that, as directed by CWC, the girl might be sent back to their natal home where they often face a lot of backlash from family and the neighbourhood, Persis added. The data is sparse on how a similar situation would pan out in a queer romantic case.
But it’s not always romantic relationships that bring adolescent queer people in conflict with POCSO. Some of them leave their homes with a person they trust to escape severe familial violence. When queer-trans rights organisations step in to help in such cases or provide shelter, they worry that the family of the minor person may target them using POCSO. The worry is valid because we have heard about such cases, said Ghosh of Sappho For Equality. POCSO is frequently used by families, judicial bodies and child protection institutions to undermine the autonomy of queer-trans adolescents and sometimes target those who support them, added Ghosh, who has intervened in about half a dozen queer-trans cases under POCSO so far this year.
The worrisome part is that people or families appealing to invoke POCSO against queer-trans organisations don’t just do so in cases where the organisations directly intervene to protect queer minors. Any conversation about young adults’ gender and sexuality could be potentially twisted to rope in POCSO, said Rituparna Borah, a queer-trans activist at Nazariya, a Queer Feminist Resource Group in Delhi.
Rituparna’s fear is not unfounded. In 2018, Nazariya conducted a series of three half-day workshops with a group of 10th and 11th-grade students at Tagore International School (TIS) in Delhi. The sessions were designed to foster understanding of gender and sexuality, with a focus on LGBTQIA+ identities. However, the workshops sparked controversy when OpIndia published a series of articles accusing the sessions of “brainwashing” children into gender identity politics. This led to an outcry on social media, with some users demanding action against both the school and Nazariya. One user, Piyush Kulshreshtha, wrote on X (formerly Twitter), “This is so deeply disturbing... They have to place such acts under POCSO. Why are minors being dragged into these discussions? These activists and school administration should be punished.”
After the incident at TIS, Rituparna’s pictures facilitating the session were circulated over social media with hateful comments, targeting the organisation. “That’s when we realised how challenging it would be to work with children—not just in crisis interventions but also as a resource group conducting workshops,” Rituparna said.
This kind of fear associated with POCSO makes many gender and sexuality rights organisations hesitate to provide services to queer individuals under 18, said Mihir. “There is constant questioning of their intentions by judicial bodies and others,” Mihir added.
In matters concerning minors it is important to involve Child Welfare Committees (CWC), Persis emphasised. The CWC is a statutory body established under the Juvenile Justice Act, tasked with addressing and resolving cases involving children who are abandoned, orphaned, lost, in need of care or are voluntarily surrendered by their parents. Every district in India is required to have a CWC.
Typically, after reviewing a romantic case involving a minor, CWCs separate the couple and put the minor in a shelter home or send them to their natal families. The case becomes more complicated when queerness enters the picture, as most CWCs often lack sensitivity toward queer sexuality, which is crucial, said Persis. “When we talk about child rights and the best interests of children in key decision-making spaces, we rarely consider a child who is gay or lesbian. The focus is usually on children who are homeless or victims of incest.”
The lack of understanding in CWCs and judicial bodies about queer-trans realities while reviewing cases under POCSO has resulted in a disturbing pattern. These institutions tend to side with parents of queer-trans adolescents, who often undermine adolescents’ queerness, said Mihir.
He shared an example from Punjab. In early 2024 a queer couple was forcibly separated by the family of the minor partner, a girl. They also coerced her to return to her natal home. When the other partner filed a habeas corpus petition against the minor girl’s family, the Punjab and Haryana High Court judge, Justice Pankaj Jain remarked, “Is this a queer couple matter?...take this immoral thing back where it came from.” When the petitioner’s lawyer attempted to interject, the judge, according to a report by Hindustan Times said, “Madam, I don't subscribe to the theory that constitutionality and morality are different.”
Meanwhile, according to the Punjab and Haryana High Court orders, the minor boarded a bus from her village in Uttar Pradesh and travelled to Punjab to reunite with her partner. She stated that she endured alleged torture and beatings from local police and her father.
The court later ordered that the minor girl be placed in a protection home and should be given counselling by the CWC. She was eventually manipulated by CWC to return to her natal home, according to the lawyer who looked at the case but doesn’t want to be quoted. In an April 2023 report on the familial violence faced by queer people titled “Our Own Hurt Us The Most”, one of the recommendations is to advocate for people to have the “right to exit natal family and create a chosen one” and its recognition in law so that queer adolescents can live safely. The report was prepared by People’s Union For Civil Liberties and National Network of Lesbian, Bisexual and Intersex Women and Trans Persons.
Several queer activists shared that while going back to natal families in such cases can be risky for the minor person, sometimes shelters or child protection homes aren’t safe spaces for them either, especially if they are queer.
“The children are often subjected to harassment or punishment by shelter authorities [both private and public]—whether it’s for refusing to wear certain clothing, being in a queer relationship or behaving in ways deemed inappropriate,” said Koyel, who has come across several such cases.
In other cases, shelter homes and CWCs are just reluctant to keep queer-trans minors. Tashi, a queer-trans rights activist and part of Queer Trans Wellness & Support Centre (QT Center), an initiative that provides counselling and serves as a drop-in space for queer-trans individuals in Hyderabad, recounted an incident from June 2024 involving a minor transfemme individual who fled her natal home and ended up at the CWC in Hyderabad. The CWC called the QT Center to talk to them about the case. When members from the QT Center including Tashi arrived, the CWC expressed reluctance to keep the child at their shelter. Instead, they suggested placing the child with a Hijra gharana, saying that the institution is not equipped to best meet the needs of the person while not taking any responsibility to make their shelter queer-affirming, Tashi told me. QT Center told CWC that it should accommodate everyone, including trans minors. The CWC agreed.
“We later learned the child was placed in foster care with a Hijra community leader, but she eventually ran away from there,” Tashi shared.
Given the layers of complexity involved in how POCSO is invoked in romantic cases, particularly concerning queer individuals, some activists and scholars suggest that the age of consent should be lowered while still keeping POCSO’s protection mechanisms intact. The Enfold report also recommended a legal amendment to decriminalise consensual sexual acts involving adolescents over 16, while ensuring that all children under 18 remain protected from sexual offenses under POCSO. In simple terms, this would mean that if a 17-year-old boy is in a consensual sexual-romantic relationship with an 18-year-old boy, the law would let them be and provide necessary protection. But if one is being sexually abused by the other partner, POCSO may put the accused through the juvenile justice system.
According to Uma, the Co-Founder & Director at RATI foundation who has over 15 years of experience of working with children at risk, there have been multiple attempts to provide evidence to the government to reconsider lowering the age of consent under POCSO. “The legal framework under POCSO is extremely stringent around age of consent, but we as practitioners know that this framework doesn’t reflect ground reality. There is enough evidence to show that consensual romantic relationships among children are being criminalised because of the law. There have been attempts to bring this to the attention of both the judiciary and the State. However, there has been pushback which has led to the entire conversation around lowering the age of consent fading away,” Uma explained.
Reflecting on the Enfold report that advocated for lowering the age of consent, on December 10, 2022 Chief Justice of India D. Y. Chandrachud urged the Parliament to reexamine the age of consent, highlighting the challenges it posed for judges dealing with cases of consensual sex involving adolescents. However, the Law Commission later released a report recommending that the age of consent not be lowered.
Further, the National Commission for Protection of Child Rights (NCPCR) raised questions on the veracity of the policy brief published jointly by Enfold, UNFPA and UNICEF and also wrote to UNICEF asking it to withdraw the document, as reported by Business Standard.
Uma added that while some child rights groups continue to highlight the need for lowering the age of consent, their efforts are met with opposition from other groups, for instance anti-trafficking groups who argue against any amendments related to the age of consent.
Realising that it is not easy to untangle this web, Sappho for Equality focuses on sensitising CWCs, police officials and lawyers who handle POCSO cases and child protection matters about queerness and sexual diversity among children. “We’ve made significant progress in sensitising child protection bodies, and since they are cooperating with our needs, we’re cautious about pushing for bigger changes [such as lowering the age of consent] right now,” Koyel explained.
Talking about Megh, the 19-year-old trans man who was arrested by the police in Patna, Koyel said that after Sappho intervened, Megh was released on anticipatory bail. The case has moved to the Kolkata High Court, where Sappho is working to have the criminal charges against Megh dropped. These charges severely impact Megh’s already challenging job prospects as a trans person. Despite being out on bail, Megh still has to report to the police every 15 days and endure their ongoing harassment, while his minor partner remains with an abusive family, said Koyel.
In order to reduce or avoid such situations, several children and queer rights activists I interviewed emphasised the need to reexamine the criminal and juvenile justice systems, and to educate these systems to create a more affirming environment for all adolescents.
Names with * have been changed to protect the identity of the person.
Sudipta Das (they/them) is an anti-caste queer feminist practitioner, gender expert, and writer, with experience of working on sexual and reproductive health and rights (SRHR), queer rights, communications, and advocacy. They write on key issues of caste, queerness, health, GBV, and culture.
Jose (she/they) is a non-binary illustrator from Kerala whose work highlights personal stories marked by gender, body experiences, and their South Indian heritage. While not lost in their sketchbook, they can be found devouring all things camp and horror.
Ankur Paliwal (he/him) is an independent journalist, and founder and managing editor of queerbeat
