New Delhi, September 29
Turning down demands for reducing the age of consent from 18 years to 16 years under the POCSO Act, the Law Commission has recommended to the Government that it should be retained at 18 years in view of problems of child abuse and child trafficking for prostitution.
“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,” said the Commission whose recommendations are not binding on the Government.
In its 283rd Report on “Age of Consent under the Protection of Children from Sexual Offences (POCSO) Act, 2012” submitted to Minister of State for Law and Justice Arjun Ram Meghwal, the Law Commission, however, suggested certain amendments to 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 I6 to l8 years.”
The Law Commission – which advises the Government on legal issues -- said, “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 Justice Ritu Raj Awasthi-led Commission favoured introducing “guided judicial discretion” in the matter of sentencing in such cases, saying, “This will ensure that the law is balanced, thus safeguarding the best interests of the child.”
It suggested amendments to Sections 4 and 8 of the POCSO Act (Penetrative sexual assault and sexual assault); Section 18 of the Juvenile Justice (Care and Protection Act, 2015 (Children in conflict with law) and Sections 375 and 376 of the IPC (Rape) to give discretion to courts while awarding punishment to convicts in cases wherein “there is tacit approval in fact, though not consent in law on part of the child aged between I6 to l8 years.”
Section 4 of POCSO prescribes a minimum sentence of 10 years for penetrative sexual assault if the victim is aged between 16 and 18 years and a minimum sentence of 20 years in cases where the victim is below 16 years.
However, the Commission recommended that courts should be given discretion to award a punishment which was less than the maximum punishment in case there the accused and the victim were in an intimate relationship; there was tacit approval on the part of the victim (aged between 16 and 18 years); the difference in age between the accused and the child is not more than three years; the accused has no criminal antecedents; he bears good conduct after the occurrence of the offence; there is no element of undue influence, fraud, misrepresentation, coercion, force, violence or deceit perpetrated on the child by the accused or any other person on behalf of the accused; or any element indicating child trafficking: and there is no change in the social or cultural background of the child, indicating an element of manipulation or indoctrination.
Before awarding lesser punishment than what is prescribed under POCSO Act, the court would also consider that there is no change in the social or cultural background of the child, indicating an element of manipulation or indoctrination, it said.
The Commission also recommended spreading awareness regarding child sexual abuse, sexual and reproductive health as well as provisions of the POCSO Act, saying, 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 and government programs like Rashtriya Kishor Swasthya Karyakram should be utilised to inform and empower the adolescent population of India,” it recommended.
“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.
The issue was referred to the Law Commission by the Karnataka High Court and the Madhya Pradesh High Court in November 2022 and April 2023, respectively.
The Karnataka HC wanted a 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 boys, thereby attracting provisions of the POCSO Act and/or the Indian Penal Code, 1860.
The MP High Court had 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 was apparent on part of the girl child or where such a relationship culminated in marriage, with or without children.
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