New Delhi: The Law Commission has said it is not advisable to tinker with the “existing age of consent under the POCSO Act”, however it stressed on introducing judicial discretion in sentencing in cases of consensual romantic relationship between adolescents or with an adolescent between the age of 16 to 18 years.
The commission, headed by Justice Ritu Raj Awasthi, in its 283rd report, said that while giving a blanket exemption to consensual sexual acts by persons above 16 years may seem like a panacea for the situation “we are faced with, however, the same will lead to many unintended consequences of much severe nature”. The commission said that reducing the age of consent will have a direct and negative bearing on the fight against child marriage and child trafficking, and carving out a limited exception for sexual relations with a child above 16 years is equally concerning and prone to misuse.
The commission said it is necessary that certain amendments need to be brought in the POCSO Act to remedy the situation in cases wherein there is tacit approval in fact though not consent in law on part of the child aged between 16 to 18 years. It said such cases do not merit to be dealt with the same severity as the cases that were ideally imagined to fall under the POCSO Act
The age of consent is the age at which a person is considered legally capable of agreeing to marriage or sexual intercourse. At present the age of consent for sexual intercourse is 18 years on account of the POCSO Act. However, prior to the POCSO Act, there was no age of consent defined separately and it was fixed by virtue of Section 375 of the IPC, which defines "rape".
The commission noted that the blanket criminalisation of sexual activity amongst and with a child, though intended to safeguard children, is leading to incarceration of young boys and girls who engage in such activities as a consequence of sexual curiosity and need for exploration that may to some extent be normative for an adolescent. “There is a social cost associated with the present situation, including the negative impact upon the health, both physical and mental, of the children as well as a burden upon the investigating agencies and courts which takes away focus from the cases that are genuine and require immediate consideration”, said the commission.
It stressed that the consent of a child is no consent and reading the same would be deeply problematic and all children deserve the protection of the special law enacted for this very purpose and diluting the age of consent will deprive a significant portion of the child population.
The commission said the increasing incidents of grooming and cyber-crimes such as sextortion are classic examples of how children in this vulnerable age group can be trapped and exploited. It said in Assam, some parents arrange marriage between minors or a minor and an adult by signing notarized agreements stating that the minors or the minor and the adult have fallen in love. “Thus, any reduction in age of consent will inevitably provide a safe harbour provision to coerce minor girls into subjugation, marital rape and other forms of abuse, including trafficking”, said the report.
The commission said there cannot be any automatic decriminalisation of sexual acts with a person between the age of 16 to 18 years and carving out a limited judicial discretion at the stage of sentencing is a more reasonable approach. “Such a discretion bestowed on the Special Court can be exercisable in cases where there appears to be factual consent on part of a child above the age of 16 years," it said.
The commission said only a judicially trained mind aided by experts will be able to appropriately determine whether the consent in fact of the child in question was indeed free from any coercion, deception, fraud or undue influence. This would require proper investigation and evidence being adduced so as to determine if any reduction in sentence is warranted, it added.
The commission said judicial discretion once vested will enable the Special POCSO courts to try the cases expeditiously and the high courts will not be plagued with bail applications, quashing proceedings, and writ petitions.
The commission examined the matter and made its report entitled as 'Age of Consent under the Protection of Children from Sexual Offences Act 2012" upon a reference from the Karnataka High Court (Dharwad bench) by a letter of November 9, 2022.
The high court had asked the commission to rethink on the age criteria for consent, taking into consideration the rising number of cases relating to minor girls above the age of 16 years falling in love, eloping and having sexual intercourse with the boy, thereby attracting the provisions of the POCSO Act and the Indian Penal Code. The commission also received a reference from the Madhya Pradesh High Court of (Gwalior Bench), vide letter in April, 2023.
The commission has emphasized that after a careful review of existing child protection laws, various judgements, and considering the maladies of child abuse, child trafficking and child prostitution that plague our society, it is of the measured view that it is not advisable to tinker with the existing age of consent under the POCSO Act.
Speaking at an event in December last year, the Chief Justice of India D Y Chandrachud had asked lawmakers to address the “growing concern” regarding the criminalisation of adolescents who engage in consensual sexual activity.
The CJI had said "As you are no doubt aware, the POCSO Act criminalises all sexual activity for those under the age of 18 regardless of whether consent is factually present between the two minors in a particular case.”.
He added that in his time as a judge, “I have observed that this category of cases poses difficult questions for judges across the spectrum. There is growing concern surrounding this issue, which must be considered by the legislature in light of reliable research by experts in adolescent healthcare”.