Manas Dasgupta
NEW DELHI, Sept 29: The Law Commission has disfavoured lowering the age of consent under the Protection of Children from Sexual Offences Act (POCSO) and instead has recommended introduction of a separate “guided judicial discretion” clause to spare some children being punished despite having consent from his minor sexual partner.
The Commission in its recommendation said lowering the age of consent from the present 18 to 16 would have a negative impact on the fight against child marriage and child trafficking. It Instead, it advised the introduction of “guided judicial discretion” while sentencing in cases that involve the tacit approval of children in the 16 to 18 years age bracket.
The 22nd Law Commission, headed by Justice (Retired) Ritu Raj Awasthi, former chief justice of the Karnataka High Court, submitted its report (no. 283) to the Law Ministry on September 27 and posted it on its website on Friday. The panel said it considered it necessary to bring about amendments in the Act to “remedy the situation” in cases in which there is tacit approval from children aged between 16 and 18. It said “guided judicial discretion” can be applied in such cases.
In December last year, Chief Justice of India DY Chandrachud had urged parliament to address growing concerns related to the age of consent under the POCSO Act. The reference on the age of consent was made to the Law Commission on November 9, 2022 by the Karnataka High Court (Dharwad Bench), which asked the Commission “to 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 the boy.” In such cases, the boys were punished because of the minor girl had no right of consent.
A similar reference was also made by the Madhya Pradesh High Court (Gwalior Bench) in April this year, where the Court noted that the enforcement of the POCSO Act, in its present form, “causes injustice in cases of statutory rape where de facto consent is present.”
Taking note of such judicial observations, the Commission noted that cases where there is tacit approval do not merit the same severity as “cases that were ideally imagined to fall under the POCSO Act.” “The Commission, therefore, deems it fit to introduce guided judicial discretion in the matter of sentencing in such cases. This will ensure that the law is balanced, thus safeguarding the best interests of the child. Accordingly, this Report is being submitted for your kind perusal,” Justice Awasthi said in the letter.
In its report to the Law Ministry, the 22nd Law Commission of India has said, “After a careful review of existing child protection laws, various judgements 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.”
It said that if there was automatic decriminalisation once the defence of consent is claimed, it must be kept in mind that consent can always be manufactured. The panel pointed to data which reflects that most perpetrators in POCSO cases are people known or close to the child and sometimes even people from the same family. It also said diluting the law in this manner could mean reducing it to a “paper law.”
“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,” the Commission said.
“Such a dilution will provide an easy route to reduce the cases under the POCSO Act or deal with them without getting into the complexity of issues that surround such a trial, thereby reducing the POCSO Act to a ‘paper law’,” it said.
The panel said it had considered all the views and suggestions given in connection with cases involving those between the ages of 16 and 18. The recommendations of the Law Commission are not binding, and will be studied and taken into consideration by the government, which will take a final call.
Speaking at an event in December last year, Chief Justice Chandrachud had spoken about judgments of the POCSO courts in ‘romantic cases’ – involving consenting adolescents engaging in sexual activity. “As you are no doubt aware, the POCSO Act criminalises all sexual activity for those under the age of 18 regardless of whether consent is factually present between the two minors in a particular case. In my time as a judge, I have observed that this category of cases poses difficult questions for judges across the spectrum. There is growing concern surrounding this issue, which must be considered by the Legislature in light of reliable research by experts in adolescent healthcare,” said the CJI.
He had said there was a culture of silence around sexual abuse of children and the state must encourage families to report abuse even where the perpetrator is a family member.
The Law Commission has also submitted another report in which it recommended rolling out the registration of e-FIRs in a phased manner, beginning with offences that attract a jail term of up to three years. It said the e-FIRs would tackle the persisting problem of delay in the registration of FIRs, and would allow citizens to report crimes in real time. “Due to the march of technology, means of communication have progressed in leaps and bounds. In such a landscape, clinging on to an archaic system of registering FIRs does not augur well for criminal reforms,” Justice Awasthi noted in his covering letter to the Law Minister.
