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Indian Express

10-October-2023

1) Age of Consent under POCSO

Context:

  • The 283rd report of the Law Commission has advised against lowering the age of consent, which is currently set at 18 years under the POCSO Act.
  • The Commission believes that reducing the age of consent would have negative consequences, particularly in relation to child marriage and child trafficking.
  • This article will discuss the various issues related to this observation.

Key Highlights

  • The Law Commission acknowledges that there may be situations where children aged between 16 and 18 years may not provide explicit consent but may give tacit approval to certain actions. In such cases, the Commission suggests that amendments to the POCSO Act are necessary to address these nuances.
  • The Commission emphasizes the need for a balanced approach in cases involving “adolescent love,where there may be a lack of criminal intention. It advises the courts to exercise caution and discretion in such cases.
  • The Commission proposes the introduction of “guided judicial discretion” when it comes to sentencing in cases involving tacit approval by minors aged 16 to 18.This approach would allow judges to consider the circumstances and severity of each case individually, rather than applying the same severity as in cases involving younger children.

Age of consent under the Protection of Children from Sexual Offences (POCSO) Act

  • Enacted in 2012, the POCSO Act primarily aims to safeguard children from sexual abuse and exploitation. The Act sets forth the legal framework for addressing and preventing sexual offences against minors.
  • As of the Act’s enactment, the age of consent was fixed at 18 years. This means that sexual activities with a minor under the age of 18, regardless of consent, are considered illegal.
  • The POCSO Act prescribes stringent penalties for offenders, including imprisonment, for various forms of sexual offences against children. These penalties are meant to act as a deterrent against child sexual abuse.

Issues with the Law Commission’s recommendations:

  • The LCI suggests keeping the age of consent at 18 in order to criminalise both abuse and non-coercive consensual sex, even when it takes place between peers.
  • As a mitigating measure, it suggests judicial discretion to give sentences shorter than the legal minimum of 10 years and offers guidelines for identifying the circumstances that merit sentence reduction.

The proposed mitigation is flawed on three counts:

  • First, the “close-in age” exception applies at the sentencing stage, thus consenting sexual contact with a minor between the ages of 16 and 18 is still illegal even when the offender and victim are not more than three years apart.The accused might have stood a chance of being exonerated if this exemption had been accepted as a defence. Additionally, the provision only permits sentence reduction rather than sentence waiver, so the stigma associated with criminalization and jail persists.
  • Second, the phrase “consent” is replaced with a new one called “tacit approval”. The legal definition of consent is supported by jurisprudence. According to the Ministry of Health and Family Welfare’s rules, sexual assault victims who are 12 years of age or older are recognised as having given their consent to medical examination. The usage of “tacit approval” without even a definition is perplexing because the court reference to the LCI also dealt with consensual sex.
  • Third, a list of conditions is given to help determine whether or not the exemption applies. However, this does not only apply to forceful and exploitative situations; it also comes with warnings that there should be “no change in the child’s social or cultural background, indicating an element of manipulation or indoctrination,” which are probably allusions to interfaith and intercaste connections.
  • Additional circumstances listed include pregnancy, marital status and family acceptance, good behaviour and absence of criminal antecedents

Together, these cases could be seen to indicate that judicial discretion is biased in favour of underage sexual relationships that are not simply close in age but also those that take place in marriages that adhere to social norms and are supported by family members.

Conclusion

  • The Law Commission’s recommendations seek to strike a balance between protecting minors from sexual offences while also recognizing the complexities of cases involving older adolescents and their ability to provide informed consent.
  • The proposed guided judicial discretion aims to ensure a more nuanced approach to sentencing in such cases.

2) Dealing with Terrorism in J&K

Context:

  • The nation is still in mourning for the gallant uniformed forces officers who lost their lives in an encounter with two LeT terrorists in the Anantnag area of South Kashmir during the second week of September.
  • This article will discuss the reasons and also the steps that need to be taken in order to strengthen our security apparatus.

What happened?

  • According to reports, the joint Army and police detachment was ambushed or trapped by their attackers while they were hot on the trail of terrorists in a dense wooded region on a cliff.
  • As per reports, the search for the LeT terrorists was started based on intelligence. It is unknown who contributed this information because it was a cooperative effort between the Army and the police.

Importance of Intelligence inputs:

  • There are certain challenges of conducting anti-terrorist operations in deep forest mountainous terrains.
  • Two kinds of intelligence inputs guide counter-terrorist operations on the ground: human intelligence and technical intelligence (humint and techint).
  • Techint is further subdivided into communication (comint) and image intelligence (imint).
  • While humint inputs need to be analysed very cautiously before being acted upon, techint inputs are more reliable and precise.

Issues with Human intelligence:

  • For obvious reasons, Army units stationed in the Kashmir Valley have restricted access to trustworthy human resources.
  • They are not familiar with the local language, mentality, or geography because they are from other regions.
  • The civil thanas and state police special branch (CID) of the local police is in a stronger position.
  • It’s challenging to develop trustworthy human intelligence assets in a terrain like Kashmir.
  • There is a chance that the sources will act twice to serve their masters who are on the other side of the border.
  • Religion and money play important roles.

Role of Pak army and ISI

  • The Pakistan Army and ISI are driving, directing, and funding violence from outside the boundaries at a very little cost.
  • In the past, they have launched quite audacious attacks not just in J&K but also in the rest of the nation, including the Parliament and the financial capital, Mumbai.
  • With the aid of covert intelligence networks operating within our nation, they are well renowned for inspiring, training, and infiltrating suicide squads. These suicide squads receive hefty money as well.
  • Due to the country’s fragile economy, which is supported by loans from China and the IMF, the Pakistani army and government are currently under immense strain.

Possible steps that should be taken:

  • Remotely guided rockets launching unmanned air vehicles (UAVs) is an option worth considering when LeT strikes inside our territory.
  • Pak ISI sleeper cells spread all over our country must be detected and neutralised. This is easier said than done, but patience and perseverance should be the name of this game.

Confidence building measures that should be taken:

  • We must deradicalise sections of the Muslim youth by releasing them from the stranglehold of mullahs in madrasas and mosques and providing them access to schooling.
  • This could be a time-consuming exercise, but we must make a beginning and no better place to start than the Kashmir Valley where the Peer Muridi (Sufi) form of Islam has been buried under the weight of the Wahabi sect financed from overseas.
  • We must continue to be on guard against similar terrorist attacks in J&K and make every effort to win over the hearts and minds of Kashmiri Muslims who stand to benefit from growing their businesses as a result of an increase in tourists visiting the Kashmir Valley.
  • We need to help them understand how much the terrorist attacks supported by Pakistan are costing them on their own soil.
  • For young Muslim people in Kashmir prepared to leave their homes in order to make a living, we should provide additional job opportunities outside of Jammu and Kashmir.

Way Forward:

  • A broad national effort based on India’s democratic heritage will be necessary to combat terrorism.
  • By putting youth on the correct path through national integration tours, sports training programmes and festivals, and skill development workshops, the Indian government should endeavour to combat the problem of radicalism.

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