- 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.
- 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.
- 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.