In its report to the law ministry, the Commission headed by former chief justice of Karnataka high court Justice Ritu Raj Awasthi said that such cases should not be dealt with the same severity under Pocso and advised courts to tread with caution in deciding these cases.It cited courts having observed that “adolescent love cannot be controlled and that the criminal intention may be missing in such consensual acts”.
However, it said that “any decrease in the age of consent would negatively impact the age-old fight against child marriage” and provide an escape provision to “coerce minor girls into subjugation, marital rape and other forms of abuse, including trafficking”.
The report highlights that during the consultations, there was a wide divergence of opinion on how to resolve the tricky issue involving consensual romantic relationships involving minors, but there was unanimity of thought over this aspect of the Pocso Act working against the very children it sought to protect.
“The blanket criminalisation of sexual activity, 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,” it said.
The panel has recommended amendments in the Pocso Act and related changes in the Juvenile Justice 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”.
The Commission opined that “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 list of issues which the court could consider during sentencing include the age difference between the accused and child not being more than three years; the accused having no criminal antecedents; and the accused bearing good conduct after the offence.
In the amendments recommended to Section 4 of Pocso Act pertaining to punishment for penetrative sexual assault, it states that “where the child on whom the offence is committed, was at the time of commission of the offence, of the age sixteen or above, and where the special court is satisfied that the relationship between the accused and the child has been intimate, the court may, in its discretion, impose any lesser sentence on the accused than the minimum sentence prescribed, taking into account all the facts and circumstances of the case”.
As of now, punishment for penetrative sexual assault is imprisonment of not less than 10 years, which can extend to life imprisonment. In case of a child below 16 years of age, the punishment extends to a term of not less than 20 years, but which may extend to imprisonment for life.
It is also emphasised in the report that that a mere claim of marriage or birth of a child in the relationship between the accused and the child will not entitle the accused for a lesser sentence.
The Commission has also recommended amendments in Section 18 of the Juvenile Justice Act 2015, which enables a Juvenile Justice Board to pass an order for trial of a child involved in a heinous crime as an adult. The Law Commission has recommended a proviso and explanation in this section that will allow the JJ Board to give a child, accused under Pocso and involved in a consensual romantic relationship, a fair chance of redressal and not end up in the adult trial system in cases of heinous offences.
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