Reducing age of consent under POCSO Act will have disastrous consequences: Law Commission

The Law Commission of India has recommended in its 283rd report that the government should not tinker with the age of consent under the Protection of Children from Sexual Offences (POCSO) Act. In the report titled "Age of Consent under the Protection of Children from Sexual Offences Act, 2012" submitted on September 27, the Commission noted that reducing the current age of consent, which is 18, would have a disastrous effect on fighting child marriage and child trafficking.

The Commission, therefore, deems it fit to introduce guided judicial discretion in the matter of sentencing in such cases, wrote the Commission chairperson Justice Ritu Raj Awasthi in his letter to to the Law Minister Arjun Meghwal.

It was observed by the Commission that it was 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.

The panel advised the courts to be careful in cases of “adolescent love”. “This is so because in our considered opinion, 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 Commission, therefore, deems it fit to introduce guided judicial discretion in the matter of sentencing in such cases,” said the Commission.

It was pointed out in the report 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. The need for exploration is normative for an adolescent.

The mental trauma and harassment faced by children who, on account of engaging in such a consensual act, come to fall within the ambit of the POCSO Act is certainly an issue of concern, concluded the Law Commission. “Thus, steps are obviously required to be taken to address this aberrant situation created by the working of law as intended,” said the Commission.

The Commission said it came up with three possible solutions in such cases: (a) blanket reduction of the age of consent to 16 years as was the situation prior to enactment of the POCSO Act; or (b) to introduce a limited exception in case of consensual sexual act involving a child above the age of 16 years; or (c) to introduce judicial discretion in sentencing in cases of consensual romantic relationship between adolescents or with an adolescent between the age of l6 to l8 years.

However, the Commission observed that the blanket exemption to consensual sexual acts by persons above 16 years may seem like an easy solution, however, it will lead to many unintended consequences of much severe nature. If there is an automatic decriminalisation once the defence of consent is claimed, then it must be borne in mind that consent is something that can always be manufactured.

The data available reflected that most perpetrators are someone close to the child or someone the child knows including from their own family. Then, a lot of genuine cases that need to be prosecuted under the POCSO Act may not see trial on account of investigating agencies themselves declaring them to be cases of consensual romantic sexual relationship. Such a dilution will reduce the POCSO Act to a 'paper law'.

The second proposed option is equally concerning and prone to misuse, said the Commission. The consent of a child is no consent and reading the same would be deeply problematic. All children deserve the protection of the special law. Diluting the age of consent will expose young girls to unchecked exploitation. 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.

The Commission pointed towards examples in Assam where parents arrange marriages between minors or a minor and an adult by signing notarised 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.

While there was an argument in front of the Commission that introducing exception when the child is between 16 to 18 years of age was that the age of consent and age of marriage should not to be conflated, the Law Commission underscored that given India’s social milieu, both were intrinsically linked. “If we are to disassociate age of consent and age of marriage, then consent can always be pleaded to exist where the accused marries the victim, even if the said "consent" arises after the occurrence of the alleged offence,” said the Commission.

“The third solution of introducing judicial discretion in sentencing seems to strike a delicate balance to address the issue at hand and at the same time protecting children from sexual exploitation. There cannot be any automatic decriminalisation of sexual acts with a person between the age of 1 6 to I 8 years,” explained the Commission.

Suggested amendments to the Acts

The Commission had recommended amendments to Sections 4 and 8 of the POCSO Act, which deals with punishments for penetrative sexual assault and sexual assault.

The Commission has recommended that special courts give lesser sentences in cases where the child is of the age 16 or above, subject to explicit consent. It also suggested making corresponding changes in Sections 375 and 376 (rape) of the Indian Penal Code (IPC) in the context of what is stated in report.

Additionally, the Commission has underscored that there is a need to spread awareness regarding Child Sexual abuse, sexual and reproductive health and provisions of the POCSO Act. “In order to ensure that children get the best environment to grow and flourish, it is necessary to increase awareness regarding child sexual abuse and the varied forms it can take. Further, as a part of their school curriculum, children can be made aware of their body and various physiological and psychological changes they experience as a part of growing up,” stated the Commission in its report.

The Commission states that the information about sex and the ill-effects of engaging in it at a young age can better equip children to make healthier and safer choices in life. Comprehensive and age-appropriate sex education should be made a mandatory part of school curriculum.

The Law Commission pointed out that it had received a reference in November 2022 from the Karnataka High Court (Dharwad Bench), asking 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/or the Indian Penal Code, 1860.

The Commission had also received a letter from the Madhya Pradesh High Court (Gwalior Bench) in April 2023, where it has drawn attention on how the enforcement of the POCSO Act, in its present form, causes gross injustice in cases of statutory rape where de facto consent is present. The Court requested the Commission to suggest amendment to the POCSO Act, vesting discretionary power in the Special Judge to not impose the statutory minimum sentence in cases where de facto consent is apparent on part of the girl child or where such a relationship has culminated in marriage, with or without children.

The 22nd Law Commission was constituted for three years in February 2020, but its chairperson Justice Ritu Raj Awasthi, the former chief justice of Karnataka High Court, was appointed in November 2022. The panel includes Justice KT Sankaran, professor Anand Paliwal and professor DP Verma, K Biswal (member secretary), Dr Niten Chandra (member (ex-officio)), Dr Reeta Vasistha (member (ex-officio)); and part-time members M Karunanithi and Dr Raka Arya.