Law Commission Recommends Judicial Discretion for Age of Consent Under POCSO Act [Read Law Commission Report]

NEW DELHI: The Law Commission has said that it is not advisable to tinker with the existing age of consent under the POCSO Act, though judicial discretion may be applied in sentencing in cases where there is tacit approval of relationship by the girls falling between 16 to 18 years of age.

The panel suggested for amending Sections 4 and 8 of the POCSO Act related to punishment for penetrative sexual assault and sexual assault respectively by giving discretion to the Special Court to impose lesser sentence where is above 16 years of age after being satisfied of intimate relationship.

It also favoured bringing in similar amendment to the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Indian Penal Code.

In its 283 rd report, the Commission led by Justice Ritu Raj Awasthi, former Chief Justice of the Karnataka High Court said that reducing the age of consent will have a direct and negative bearing on the fight against child marriage and child trafficking. It also felt carving out a limited exception for sexual relations with a child above 16 years is equally concerning and prone to misuse.

"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," it said.

The Commission said while giving a blanket exemption to consensual sexual acts by persons above 16 years may seem like a panacea for the situation we are faced with, however, the same will lead to many unintended consequences of much severe nature.

At present the age of consent for sexual intercourse is 18 years under the POCSO Act.

The Commission referred to the instances of the increasing incidents of grooming and cyber-crimes such as sextortion, which are classic examples of how children in this vulnerable age group can be trapped and exploited.

"There cannot be any automatic decriminalisation of sexual acts with a person between the age of 16 to 18 years and carving out a limited judicial discretion at the stage of sentencing 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," it said.

The Commission said judicial discretion once vested will enable the Special POCSO Courts to try the cases expeditiously and the High Courts will not be plagued with bail applications, quashing proceedings and writ petitions.

The Commission examined the matter and prepared its report entitled as 'Age of Consent under the Protection of Children from Sexual Offences Act 2012' upon a reference from the High Court of Kamataka (Dharwad bench) by a letter of November 9, 2022.

The HC had 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, thereby attracting the provisions of the POCSO Act and the Indian Penal Code.

"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.

However, it said that certain amendments need to be brought in 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 16 to 18 years.

"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" it added.

The Commission, further said, introducing guided judicial discretion in the matter of sentencing in such cases will ensure that the law is balanced, thus safeguarding the best interests of the child.

The panel also pointed out there is general lack of awareness amongst the children as to what constitutes child sexual abuse and its various forms.

"Even if the child knows that the act done is wrong and exploitative, a large number of them never report the same to their parents or even close friends out of fear of inviting further trouble for themselves and their family. Thus, the supportive mechanism available to children clearly requires strengthening. Further, awareness regarding sex, consequences of engaging in sex at an early age, information about contraception and safe sexual behaviour along with awareness regarding the POCSO Act is also the need of the hour," it said.

In its view, the panel's report said, "The Commission is of the opinion 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 issue whether factual consent exists cannot be left to the hands of investigating agencies as there are more dangers of abuse and misapplication in such cases. Further, in order to ensure that there is no unnecessary harassment or protracted proceedings, the current system of investigation and judicial determination have to be strengthened and improved in order to ensure expeditious trial as envisaged under the POCSO Act".

[Read Law Commission Report]