Age of consent under POCSO Act

Published
30th Sep, 2023

Context

Recently, the Law Commission has released a report mentioning that the government should not modify the age of consent, i.e. 18 years — under the Protection of Children from Sexual Offences (POCSO) Act.

About the recommendation of Law Commission:

The 22nd Law Commission, headed by Ritu Raj Awasthi has submitted its report (no. 283) to the Law Ministry regarding the review of Age of consent under POSCO Act.
As per the panel, it advises introduction of “guided judicial discretion” while sentencing in cases that involve the tacit approval of children in the 16 to 18 years age bracket.
Panel also noted that certain amendments would be required in the POCSO Act, 2012 to remedy the situation in cases involving tacit approval.

Tactic approval: It means that if someone refers to other person’s tacit agreement or approval, i.e. to mean they are agreeing to something or approving it without actually saying so, often because they are unwilling to admit to doing so.
Guided judicial discretion: Judicial discretion refers to a judge's power to make a decision based on their individualized evaluation, guided by the principles of law.
- Judicial discretion gives courts immense power which is exercised when legislature allows for it.

Arguing for the age matter, it said that;
“Reducing the age of consent would have a direct and negative bearing on the fight against child marriage and child trafficking”.
It also advised the courts to tread with caution even in cases related to’ adolescent love’, where criminal intention may be missing.

The Law Commission also submitted another report, in which it recommended amending Section 154 of the Criminal Procedure Code, 1973 in order to roll out the registration of e-FIRs in a phased manner, beginning with offences that attract a jail term of up to three years.

The panel said that e-FIRs will tackle the persisting issue of delays in the registration of FIRs, and will allow citizens to report crimes in real time.

What is the purpose of the Minimum age of sexual consent?

The minimum age of sexual consent is the age from which someone is deemed capable of consenting to sexual activity.
The objective of the minimum age of sexual consent is to protect adolescents from sexual abuse and the consequences of early sexual activity on their rights and development.
There is a possibility that young adolescents may be lured into sexual activity by older adults making those from disadvantaged settings.
Underage sexual activity presents a number of risks in relation to sexual and reproductive health, including unwanted or early pregnancy and exposure to sexually transmitted diseases.
Early pregnancy and motherhood in many cases are, in turn, primary determinants of school dropout for adolescent girls.

Why there is a need to review Age of Consent under POSCO?

Since there is increasing number of incidences of Adolescent Love, and girls being engaged in sexual intercourse, the High Courts of several states has asked for a review to the central government.
As under POSCO, child is considered for whom age is less than 18 years.
And hence, the consent of a “child” is immaterial, consensual sexual intercourse with or among adolescents is treated on par with rape.

What is the issue?

With the enactment of POCSO, a number of young couples in consensual and non-exploitative relationships have found themselves embroiled in the criminal justice system.
It also impacts the delivery of justiceas these cases constitute a large burden on our courts, and divert attention from investigation and prosecution of actual cases of child sexual abuse and exploitation.
There is thus a compelling need for law reformto revise the age of consent and prevent the criminalization of older adolescents engaging in factually consensual and non-exploitative acts.

Judicial Interpretations:

Recently Karnataka High Court in Bande Rama v. State of Karnataka quashed criminal proceedings of rape and kidnapping under the Indian Penal Code, under the (POCSO) Act, 2012.
The High court observed that the cases of mutual consent and teenage attraction, are not an uncommon occurrence at an adolescent age, and, therefore, the age of consent should be reduced from 18 years to 16, so that the boy accused of the crime does not have to undergo punishment under the POSCO Act.
Several other High Courts too have recognized the normalcy of these relationships and the futility of prosecuting romantic cases owing to the consensual nature of the relationships as well as the harmful impact of continued prosecution on both parties.
The high rate of acquittals shows that the law is not in sync with the social realities of the adolescent relationship.
Blanket criminalization of such consensual sexual acts involving older adolescents erodes their dignity, best interests, liberty, privacy, evolving autonomy, and development potential.

Arguments in favor of reform in Age of consent:

Capability to give “free consent”:
It has been found in most cases in this age group (16-18 years) that girls turn hostile because the sexual act was not against their will and they were not allured or induced into indulging in the act.
It has also been observed that due to a change in the sociocultural environment in recent decades, teenagers are sensible enough to understand the implications of their conduct.

Global Scenario:

Many countries have 16 years or below that as the age of consent.
Most of the American states, Europe, Japan, Canada, Australia, China, and Russia fall into this category.
Therefore, the rights of the child (up to 18 years of age) might be protected in accordance with the UN Convention on the Rights of the Child, but the age of consent can safely be reduced from 18 to 16.