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Synopsis

Law Commission has suggested for applying guided judicial discretion in sentencing in cases where there is tacit approval of relationship by girls of 16 to 18 years, instead of lowering the existing age of consent under the POCSO Act.

"After a careful review of existing child protection laws, various judgments 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 Commission led by Chairman Justice, Ritu Raj Awasthi said.

The Commission presented its 283rd report on 'Age of Consent under the Protection of Children from Sexual Offences Act 2012' on September 27, 2023 to Union Law and Justice Minister Arjun Ram Meghwal.

It examined the matters on a reference from the High Court of Karnataka (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 had also received a reference from the High Court of Madhya Pradesh (Gwalior Bench), vide letter in April 2023, by which the court highlighted 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 had then requested the Commission to suggest an 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 the part of the girl child or where such a relationship has culminated in marriage, with or without children.

In its report, the Commission said, "Having cautiously considered all the views and suggestions, the Commission considers it 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. 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." 

In its view, the Law Commission felt that reducing the age of consent would have a direct and negative bearing on the fight against child marriage and child trafficking. It also said that carving out a limited exception for sexual relations with a child above 16 years is equally concerning and prone to misuse. 

"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 enacted for this very purpose and diluting the age of consent will deprive a significant portion of the child population, especially young girls aged 16 to 18 years, of the protection and expose them to unchecked exploitation," it said. 

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 offence of rape. 

Further, in view of instances of the increasing incidents of grooming and cyber-crimes such as sextortion, 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 that 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. 

It stated that adolescents in the age bracket of 16 to 18 years still remain children who ought to enjoy higher protection of law and the age of consent cannot be disturbed either by reducing it or introducing a limited exception.

However, in light of the existing ground realities, if the age difference between the victim child and the accused is less than three years, the Commission is of the considered view that the introduction of judicial discretion in the matter of sentencing can help alleviate the plight of those truly aggrieved.

"There are several competing interests that call for a considered and balanced approach in the present situation. Law has to ensure a delicate balance between the evolving capacities of children and the need to protect them from harm. While adolescents falling in the age bracket of 16 to 18 years are indeed differently placed than children aged 10 or 15 years, their brains are still at a developmental stage," the report stated.

The Commission suggested amendment to Sections 4 and 8 of the POCSO Act related to punishment for penetrative sexual assault and sexual assault respectively by giving discretion to the Special Court to impose lesser sentence where the girl is above 16 years of age, after being satisfied of intimate relationship.

It also favoured bringing in similar amendments to the Juvenile Justice (Care and Protection of Children) Act, 2015, and IPC.