'Not advisable to tinker with age of consent,' Law Commission for guided judicial discretion in sentencing

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.

In its 283rd report, the Commission headed by Justice Ritu Raj Awasthi 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 age of consent is the age at which a person is considered legally capable of agreeing to marriage or sexual intercourse. At present, the age of consent for sexual intercourse is 18 years on account of the POCSO Act. However, prior to the POCSO Act, there was no age of consent defined separately and it was fixed by virtue of Section 375 of the IPC, which defines "rape". 

The Commission cited 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. 

It pointed out there have been instances where courts have factored in initial consent of a child, even though it is impermissible under the current scheme of the POCSO Act, and have quashed cases against the accused even when the child maintains that such intercourse was not truly voluntary. "This can be deeply problematic. Thus, adolescents in the age bracket of 16 to 18 years still remain children who ought to enjoy higher protection of law and age of consent cannot be disturbed either by reducing it or introducing a limited exception," it said. 

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. 

The Commission also received a reference from the High Court of Madhya Pradesh (Gwalior Bench), vide letter in April, 2023, by which the court highlighted how the enforcement of the POCSO Act, in its present form, causes gross injustice in cases of statutory rape where de facto consent is present. 

The Court has then 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 is apparent on part of the girl child or where such a relationship has culminated in marriage, with or without children.

"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, having cautiously considered all the views and suggestions, the Commission considers it necessary 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. 

Delivering a keynote address at the National Annual Stakeholders Consultation on Child Protection, Chief Justice of India D Y Chandrachud had in 2022 has asked lawmakers to address the “growing concern” regarding the criminalisation of adolescents who engage in consensual sexual activity.