On 27-9-2023, the Law Commission of India publishes its Report No. 283 on the subject “Age of Consent under the Protection of Children from Sexual Offences Act, 2012” (‘POCSO’). The Report talks about bringing certain amendments in the POCSO Act to remedy the situation where there is a tacit approval in fact and not a consent in law on part of the child aged between 16 to 18 years. However, the Commission was of the view that it is not advisable to tinker with the existing age of consent under the POCSO Act.
The Karnataka High Court (Dharwad Bench) asked the Commission to rethink the age criteria for consent under the POCSO Act considering the rising number of cases relating to minor girls above the age of 16 years coming to relationships, eloping and having sexual intercourse with boys, thereby attracting the provisions of POCSO Act and Penal Code, 1860.
The Madhya Pradesh High Court (Gwalior Bench) also drew Commission’s attention on how the enforcement of the POCSO Act causes gross injustice in cases of rape where de facto consent is present. The Court also requested 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.
The Commission, in consultation with National Commission for Protection of Child Rights (‘NCPCR’), former judges, lawyers, child rights activists, NGOs and academicians having expertise in this field, examined the judgements rendered by the High Court of Karnataka and Madhya Pradesh in State of Karnataka v. Basavraj, (2023) 1 AIR Kant R 23 and Veekesh Kalawat v. State of Madhya Pradesh. [Misc. Criminal Case No. 4521 of 2023] respectively.
Law Commission View:
After reviewing the existing child protection law, various judgments and considering the maladies of child abuse, child trafficking and child prostitution, plaguing our society, the Commission was of the view that it is not advisable to tinker with the existing age of consent under the POCSO Act.
Although, the Commission also considered it necessary that there is a need to bring certain amendments in the POCSO Act to remedy the situation where there is a tacit approval in fact and not a consent in law on part of the child aged between 16 to 18 years. The Commission said that such cases do not merit to be dealt with the same severity as the cases that were ideally imagined falling under the POCSO Act. Therefore, the Commission introduced guided judicial discretion in the matter of sentencing such cases ensuring that the law is balanced thus safeguarding the best interests of the child.
Recommendations of Law Commission:
- Amendment to Section 4 and Section 8 of POCSO Act relating to Punishment for penetrative sexual assault and Punishment for sexual assault, the following clauses should be inserted:
- Where the child on whom the offence was committed, at the of offence was of the age of 16 or above and where the Special Court if satisfied that the relationship between the accused and the child has been intimate, it can, in its discretion, impose lesser sentence than 10 years.
- While reducing the sentence lesser than 10 years, the Special Court will have to take into account the following aspects:
- Tacit approval of child;
- The age gap between the accused and child is not more than 3 years;
- Accused does not have any criminal record;
- Accused bear a good conduct after the occurrence of offence;
- Accused married the child on attaining majority and they are leading a happy married life;
- Whether any child was born in the relationship between the accused and the child, etc.
- Amendment to Section 18 of Juvenile Justice (Care and Protection of Children) Act, 2015 which relates to Orders regarding child found to be in conflict with law.
- Amendment in Section 375 or 376 Penal Code– Amendment is necessary because the current position in law as it stands is that even if the husband has consensual sexual intercourse with his wife who is below the age of 18 years, it will amount to rape under this provision.
Spreading Awareness regarding Child Sexual Abuse, Sexual & Reproductive Health as well as the provisions of the POSCO Act comprehensive and age-appropriate sex education should be made mandatory part of school curriculum and government programs like Rashtriya Kishor Swasthya Karyakram should be utilized to inform and empower the adolescent population of India.
Chairperson: J. Ritu Raj Awasthi
Full-time Members: J. K.T. Sankaran
Prof. (Dr.) Anand Paliwal
Prof. D.P. Verma