Stating that “it is not advisable to tinker with” the existing age of consent — 18 years — under the Protection of Children from Sexual Offences (POCSO) Act to exempt adolescent sexual acts from the purview of the criminal law, the Law Commission of India has instead favoured introducing “guided judicial discretion in the matter of sentencing” in cases involving those in the 16-18 age group. It says “this will ensure that the law is balanced, thus safeguarding the best interests of the child”.
Headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi, the Commission, in its Report No. 283 on ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012’ submitted to Union Law Minister Arjun Ram Meghwal, has accordingly called for certain amendments to the 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”.
“This,” it said, “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 Commission, in its report, said “while there is sea-wide divergence of opinion on how to resolve the issue at hand, there is unanimity of thought when it comes to the aspect of the POCSO Act working against the very children it ought to protect”.
“The blanket criminalisation of sexual activity amongst and with a child, though intended to safeguard children, is leading to incarceration of young boys and girls who engage in such activities as a consequence of sexual curiosity and need for exploration that may to some extent be normative for an adolescent. There is a social cost associated with the present situation, including the negative impact upon the health, both physical and mental, of the children as well as a burden upon the investigating agencies and courts which takes away focus from the cases that are genuine and require immediate consideration,” it said.
“The mental trauma and harassment faced by children who, on account of engaging in such a consensual act, come to fall within the ambit of the POCSO Act is certainly an issue of concern. Thus, steps are obviously required to be taken to address this aberrant situation created by the working of law as intended in its black letter,” it said.
The Commission, which went into various aspects of the issue, said it was finally presented with three possible solutions – a blanket reduction of the age of consent to 16 years as was the situation prior to enactment of the POCSO Act; introduction of a limited exception in case of consensual sexual act involving a child above the age of 16 years; or, introduction of judicial discretion in sentencing in cases of consensual romantic relationship between adolescents or with an adolescent between the age of l6 to l8 years.
Opposing the first – reducing the age of consent to 16 years – it said such an approach “will lead to many unintended consequences of much severe nature… thereby reducing the POCSO Act to a ‘paper law’.”
“If there is an automatic decriminalisation once the defence of consent is claimed, then it must be borne in mind that consent is something that can always be manufactured… Further, the police investigation suffers from a great number of inadequacies and if it is the investigating agencies that get to determine if there was consent or not, then a lot of genuine cases that need to be prosecuted under the POCSO Act may not see trial on account of investigating agencies themselves declaring them to be cases of consensual romantic sexual relationship… Moreover, it cannot be ignored that reducing the age of consent will have a direct and negative bearing on the fight against child marriage and child trafficking, the battles against which have been hard-fought and are still ongoing,” the Commission stated.
On where a limited exception in case of consensual sexual act involving a child above the age of 16 years should be introduced, the Commission was of the view that it too “is equally concerning and prone to misuse” as “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. The increasing incidents of grooming and cyber-crimes such as sextortion are classic examples of how children in this vulnerable age group can be trapped and exploited. Naivety is no reason to deprive these children of a higher protection under law that the Parliament in its wisdom thought fit to establish,” the Commission stated.
It said “the very real possibility of young girls being easily seduced in love traps and then sold off in trafficking cannot and should not be ignored. Any element of consent can be misused and may lead to children being at the mercy of adult abusers, thereby enabling prostitution and exploitation of children.”
Carving out a limited judicial discretion at the stage of sentencing “seems to strike a delicate balance to address the issue at hand and at the same time protecting children from sexual exploitation”, and “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 for the alleged act in question,” the report said.
It described as “genuine” the concerns that allowing “wide judicial discretion” may lead to arbitrariness and said “it has to be further ensured that such a discretionary power is provided in such a manner that it is well guided and insulated from any potential misuse as far as possible… discretionary power of the Special Court in ascertaining consent and if discretion is to be exercised at all, ought to be limited and guided so as to prevent misapplication”.
The concern, the need
The Law Commission report underlines the mental trauma and harassment children face if a consensual act falls under the ambit of the POCSO Act. Stating that this is an issue of concern, the panel has called for steps to “address this aberrant situation created by the working of law”.
Accordingly, the Commission recommended that amendments be made to Sections 4 and 8 of the POCSO Act dealing respectively with punishment for penetrative sexual assault and sexual assault, so as to allow the Special Court to give lesser sentence in cases where the child is of the age 16 or above, subject to a checklist.
It also suggested making changes in Section 18 of the Juvenile Justice Act dealing with “orders regarding child found to be in conflict with law” and corresponding changes in Sections 375 and 376 of IPC.
“As per the current scheme of law, sexual intercourse with a girl child by the husband, lover or any other person, amounts to an offence under Section 375 of the IPC as well as the POCSO Act. However, if certain reprieve is sought to be granted to the accused under the POCSO Act in cases of adolescent romantic relationships, as is being recommended in this Report, the same would be meaningless without a corresponding amendment in Section 375 punishable under Section 376 of the IPC. This is so because while the reprieve under the POCSO Act can be claimed by the lover of the child, the alleged offence in question shall continue to be penalised under Section 375 for both the lover or the husband of the child”, it said.
The Commission also underlined the need to spread awareness regarding child sexual abuse, sexual and reproductive health as well as the provisions of the POCSO Act and said “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”.
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