Age of consent under POCSO Act should not be tinkered with: Law Commission of India report

The Commission has proposed amendments to address situations where there is approval, even if not consent in the eyes of the law, from children aged 16-18 in intimate relationships.

The 22nd Law Commission chaired by Justice Ritu Raj Awasthi has submitted a report to the Union Ministry of Law and Justice on the age of consent under the Protection of Children from Sexual Offences (POCSO) Act.

The Commission has taken the view that the existing age of consent of 18 years should not be tinkered with.

“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, the Commission is of the measured view that it is not advisable to tinker with the existing age of consent under the POCSO Act,” the report stated.

However, the Commission has proposed amendments to the POCSO Act to address situations where there is approval, even if not explicit consent in the eyes of the law, from children aged between 16 and 18 years who are in intimate relationships.

According to the Commission, such cases should not be treated with the same severity as those that were originally envisioned to fall under the POCSO Act.

Therefore, the Commission has determined that it is appropriate to introduce guided judicial discretion in the sentencing of such cases to ensure a balanced approach that safeguards the best interests of minors.

In Justice Awasthi’s letter to Union Minister of State for Law and Justice, Arjun Ram Meghwal, it was revealed that the Law Commission had received references from both the Karnataka High Court and the Madhya Pradesh High Court. These references urged the Commission to reconsider the age criteria for consent as outlined in the Protection of Children from Sexual Offences (POCSO) Act.

The Karnataka High Court raised concerns about the increasing number of cases involving minor girls who are above the age of 16 years engaging in romantic relationships, eloping and having sexual intercourse with boys.

The Madhya Pradesh High Court drew the Commission’s attention to the issues arising from the current enforcement of the POCSO Act. Specifically, the Court pointed out the injustice that occurs in cases of statutory rape where there is de facto consent from the girl. It further requested the Commission to recommend amendments to the POCSO Act, granting discretionary power to special judges.

The Commission has recommended amendments to Section 4 and Section 8 of the POCSO Act, Sections 375 and 376 of the Indian Penal Code (IPC), as well as the inclusion of a proviso and an explanation in Section 18 of the Juvenile Justice Act.

Section 4 of POCSO Act provides punishment for penetrative sexual assault.

The report has recommended that after sub-section (3), sub-sections (4) to (9) should be added. These additional sub-sections would grant discretion to the courts to reduce sentences in cases where there is approval, though not statutory consent, of a child above sixteen years of age.

Furthermore, the report suggests that Section 8, which currently provides punishment for sexual assault, should be renamed as Section 8(1). Additionally, sub-sections (2) to (7) should be incorporated to empower the courts with discretion to reduce sentences in similar cases.

The report has recommended that courts take various factors such as the child’s tacit approval, the age difference between the accused and the child, the accused’s lack of criminal history, whether or not a child was born out of the offence and other circumstances like family acceptance or marriage into account.

Section 18 of the Juvenile Justice (JJ) Act of 2015 empowers the Juvenile Justice Board to issue specific orders concerning children in conflict with the law. The report suggests that offenders falling under the new sub-sections introduced in Section 4 and 8 of the POCSO Act should be included within the scope of Section 18 of the JJ Act.

Furthermore, the report has underlined that these amendments may not fully address the issue, as Section 375 (rape) of IPC can still be applied to cases involving minors below 18 years of age.

It has noted that even though Exception 2 of Section 375 exempts husbands from liability for consensual intercourse with their wives above 15 years, the Supreme Court has ruled that the age should be read as 18 years, making such acts rape under this provision.

As such, it has emphasized that providing reprieve under the POCSO Act for cases of adolescent romantic relationships would be ineffective without a corresponding amendment in Section 375 of the IPC, as lovers and husbands of minors would still be punishable under this provision.

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