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No need to alter age of consent, says law panel

By, New Delhi
Sep 30, 2023 07:14 AM IST

The report was prepared after the high courts of Karnataka and Madhya Pradesh referred the issue to the panel, whose recommendations are not binding on the government though they may have some persuasive value Report advises judge’s discretion, milder punishment under Pocso when sex consensual and age gap less than 3 years

It is not advisable to tinker with the existing age of consent for sexual acts under the 2012 Protection of Children from Sexual Offences (Pocso) Act, the Law Commission of India has said, emphasising that rising cases of consensual adolescent relationships cannot deny a child below 18 the protective legal shield against exploitation, child marriage and trafficking.

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But in its report, submitted to the Union law ministry earlier this week but made public on Friday, the commission also backed “guided judicial discretion” to impose lesser punishment in cases where the child is 16 or above and has given “tacit approval” for a sexual relationship with the accused, who is not more than three years older.

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“There cannot be any automatic decriminalisation of sexual acts with a person between the age of 16 and 18 years and carving out a limited judicial discretion at the stage of sentencing is a more reasonable approach,” said the 126-page report.

“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 panel added.

The panel — headed by former Karnataka high court chief justice Ritu Raj Awasthi — recommended a raft of amendments in the Pocso Act, Juvenile Justice (JJ) Act and the Indian Penal Code (IPC) to deal with situations where there is tacit approval -- though not considered consent in law — by a child between 16 and 18.

“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. The commission, therefore, deems it fit to introduce guided judicial discretion in the matter of sentencing in such cases,” the panel held.

The Pocso Act was implemented in 2012 to curb mounting cases of child sexual abuse and exploitation and is among the most stringent laws in the land. But in recent years, a raft of cases where the law was used to criminalise teenage sexual relationships has set off a fractious debate on the age of consent.

The report was prepared after the high courts of Karnataka and Madhya Pradesh referred the issue to the panel, whose recommendations are not binding on the government though they may have some persuasive value.

The age of consent and the difficulties for judges examining cases of consensual sex involving adolescents was also flagged by Chief Justice of India Dhananjaya Y Chandrachud in December 2022. However, later that month, in a written reply to a question on whether the government was considering changing the age of consent for consensual relationships to 16, women and child development minister Smriti Irani said the question “does not arise”.

Under the gender-neutral Pocso Act and the JJ Act, a child is defined as any person below 18. Sections 4 and 8 of the Pocso Act penalise penetrative sexual assault and sexual assault on anyone below 18 with a minimum imprisonment of 10 years and three years, respectively. Section 375 of the IPC also criminalises any sexual act with a girl under 18 as rape. The immunity to a man from marital rape is also available only when the wife is not below 18.

As the age of majority is fixed at 18 not only under these three statutes but also under the Indian Majority Act, the Hindu Minority and Guardianship Act, and the Guardians and Wards Act, the age of consent in law is also 18. Under the Prohibition of Child Marriage Act, a child is a person under 21 if male, and under 18 if female.

The panel suggested amending sections 4 and 8 of Pocso to insert six new clauses each, to allow courts to sentence an accused to any punishment lesser than the minimum jail term stipulated under Pocso. It also fixed three conditions — the child must be between 16 and 18; there must be tacit approval of the sexual act; and the accused must not be more than three years older.

“Law cannot be blind to the coercive nature of large age differences and ought to factor them in order to bring such exploitation within the purview of law...in light of the existing ground realities, if the age difference between the victim child and the accused is less than three years, the commission is of the considered view that introduction of judicial discretion in the matter of sentencing can help alleviate the plight of those truly aggrieved,” said the commission’s 283rd report.

The commission also suggested amendments in section 18 of the JJ Act for empowering a juvenile court to pass suitable orders in its discretion when a minor is charged under Pocso for a consensual relationship. It further recommended amendments in the IPC so that anyone in a consensual relationship with a girl between 16 and 18 is not charged for rape under Sections 375 and 376 of this law, while those charged under Pocso are able to secure the reprieve from harsher punishment. The amendment in the IPC, the commission favoured, should also protect men when the wife is between 16 and 18.

The age of consent — generally construed as the minimum age at which a person is considered legally competent to consent to sexual acts — varies across different countries. Italy, Hungary, Germany, Albania, Serbia, Montenegro, Brazil, Bangladesh and China have set it at 14. The UK has fixed it at 16, along with Spain, Russia, South Africa, Canada, Australia, Finland, New Zealand and Israel.

In the US, the age of consent varies by state — 31 states have set it at 16, eight at 17, and 11 at 18. India, Egypt, Vietnam, Kenya, Uganda, Argentina, Iraq, Chile, and Vatican City have fixed it at 18.

The commission acknowledged concerns that adolescent love cannot be controlled and that criminal intention may be missing in several such cases but noted that the “higher protection” under Pocso, especially to a girl child, cannot be diluted.

“While the Pocso Act is gender neutral, it is an undeniable fact that the girl child is faced with greater threats in our society...To address a specific undesirable situation that has arisen, thousands of children, especially girl children who are danger of being trafficked or abused, cannot be deprived of the protective edifice that exists on account of strict provisions of the Pocso Act, which may be their only armour,” said the report.

But the panel also flagged concerns that blanket criminalisation of sexual activity amongst and with a child, though intended to safeguard children, is leading to incarceration of young boys and girls. “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,” it said.

As per the Census 2011 data, there were more than 400 million people in India below 18, which is about 36.7% of the total population. According to the data compiled by the National Crime Records Bureau (NCRB) for 2021, the largest number of victims of cases under Pocso are between 16 and 18, and are mostly girls. The all-India conviction rate in these cases, as per the 2021 data, stood at around 32%. There are 412 special Pocso courts across the country.

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