New Delhi: The Law Commission of India has recommended to the Union government that the existing age of consent, which is 18, should not be tinkered with under the Protection of Children from Sexual Offences Act (POCSO), 2012 citing the dangers of child abuse, trafficking and prostitution.
“After a careful review of existing child protection laws, various judgments 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,” said the report.
The 283rd report of the law commission headed by Justice Ritu Raj Awasthi titled “Age of Consent under the Protection of Children from Sexual Offences Act, 2012” was released on Friday and has been submitted to the Union minister for law and justice Arjun Ram Meghwal.
The report has also recommended to the law ministry that certain amendments need to be brought in the POCSO Act and introduce judicial discretion “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. The Commission, therefore, deems it fit to introduce guided judicial discretion in the matter of sentencing in such cases. This will ensure that the law is balanced, thus safeguarding the best interests of the child,” it said.
The commission said it had received a reference from the Karnataka high court (Dharwad bench) to look at 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, and subsequently attracting the provisions of the POCSO and/or the Indian Penal Code, 1860.
It was also asked by the Madhya Pradesh high court (Gwalior bench) to look into 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 from the girl child or where such a relationship has subsequently resulted in a marriage, with or without children.”
In December last year, the Chief Justice of India D.Y. Chandrachud said that parliament must address concerns regarding the age of consent under the POCSO Act, which criminalises consensual sexual activities for those under the age of 18.
Later that month, in a reply in the Rajya Sabha, Union minister for women and child development Smriti Irani said that the government is not considering any proposal to reduce the age of consent from 18 to 16 years.
The law commission report was prepared after looking at available judgments, and consultations with the National Commission for Protection of Child Rights (NCPCR), former judges, lawyers, child rights activists, NGOs and academicians, responses from all the high courts and data from National Crime Records Bureau (NCRB).
Why commission said age of consent cannot be reduced
In arguing against the automatic decriminalisation of consensual sexual acts by persons above 16 years, the commission said that consent can always be manufactured. It also said that if the police or investigating agencies are to determine whether there was consent or not, a lot of genuine cases under POCSO may not see trial on account of the agencies declaring them to be cases of consensual romantic sexual relationship.
“Moreover, it cannot be ignored that reducing the age of consent will have a direct and negative bearing on the fight against child marriage and child trafficking, the battles against which have been hard-fought and are still ongoing,” it said.
Arguing against carving out a limited exception for sexual relations with a child above 16 years, the commission said that the proposed solution is prone to misuse as 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. The increasing incidents of grooming and cyber-crimes such as sextortion are classic examples of how children in this vulnerable age group can be trapped and exploited,” it said.
Highlighting a submission from Vikram Srivastava of Independent Thought, the commission said that in Assam some parents arrange marriages between minors or a minor and an adult by signing notarised agreements stating that the minors or the minor and the adult have fallen in love.
“Thus, any reduction in the age of consent will inevitably provide a safe harbour provision to coerce minor girls into subjugation, marital rape and other forms of abuse, including trafficking,” the report said.
Stating that while the age of consent and age of marriage should not be conflated in theory, in practice, given the country’s social milieu, the two are intrinsically linked.
“In many cases before the High Courts, one of the grounds for allowing bail or quashing the proceedings is that the victim and accused have got married and, in a number of cases, have a child as well. Thus, marriage and age of consent cannot be considered mutually exclusive,” it said.
The commission also said that if the age of consent and age of marriage are to be disassociated, then “consent can always be pleaded to exist where the accused marries the victim, even if the said ‘consent’ arises after the occurrence of the alleged offence.”
“Thus, introducing the element of consent can provide an opportunity for child-abusers to escape the rigours of law and enjoy impunity by using loopholes,” it said.
The commission also highlighted an unpublished report of the Satyarthi Global Policy Institute for Children, Kailash Satyarthi Children’s Foundation (2022) on the prevalence and nature of child sexual abuse in India to state that victims themselves identify friends and boyfriend/girlfriend as the most common perpetrators of sexual abuse.
“The very real possibility of young girls being easily seduced in love traps and then sold off in trafficking cannot and should not be ignored. Any element of consent can be misused and may lead to children being at the mercy of adult abusers, thereby enabling prostitution and exploitation of children.”
Judicial discretion in sentencing strikes ‘delicate balance’
The commission said that the solution of introducing judicial discretion in sentencing seems to strike a “delicate balance” and protects children from sexual exploitation.
“There cannot be any automatic decriminalisation of sexual acts with a person between the age of 1 6 to 18 years and carving out a limited judicial discretion at the stage of sentencing is a more reasonable approach,” it said.
Putting the onus on the courts, the commission said that only a “judicially trained mind aided by experts will be able to appropriately determine whether the consent in fact of the child in question was indeed free from any coercion, deception, fraud or undue influence.”
The commission has accordingly recommended that such judicial discretion in reducing the minimum sentencing under the POCSO Act can be introduced if the age difference between the victim child and the accused is less than three years and when tacit approval is established.
It has also recommended that discretion be used if the accused has no criminal antecedents, bears good conduct after the offence, there is no element of undue force, coercion, or any element indicating child trafficking; and the child was not used for any pornographic purposes, among others.
‘Why is trafficking coming to muddy the waters of consent under POCSO?’
Vidya Reddy, the executive director of Tulir – Centre for the Prevention & Healing of Child Sexual Abuse, who was consulted by the commission while preparing the report, said that the link between trafficking and not reducing the age of consent is not explained.
“Trafficking is being cited as one of the major reasons why they are not reducing the age (of consent). Even if that is the case, there should be evidence backed by scientific rigour to back that supposition. I would like to understand where is the evidence to show that there is a link between trafficking and being tricked to get married. In addition, POCSO is to deal with sexual offences. Even during the drafting of POCSO, the issue of trafficking came up and we decided that the IPC sections strongly deal with trafficking, whether it is an adult or a child because there is no question of consent in trafficking. So why is trafficking suddenly coming to muddy the waters of consent in POCSO?” she said to The Wire.
Bharti Ali, co-founder and executive director of HAQ: Centre for Child Rights, said that exceptions could have been created for cases of trafficking.
“Nobody is saying that trafficking should not be dealt with strictly. You could make those exceptions for cases of trafficking. Child trafficking is not only for prostitution. We have the IPC (Indian Penal Code) which recognises that children are trafficked for labour, slavery-like situations, adoption and myriad other purposes. We cannot blanketly say that all trafficking is for prostitution. Anyway, trafficking laws are very clear that there is no question of consent,” she said to The Wire.
Ali said that the age of sexual consent cannot be equated with the age of marriage in any way.
“We had very clearly mentioned this in our submissions. It is also a way of controlling the sexuality of women and adolescent boys and girls. The whole approach is very protectionist and it is not about the safety of children.”
Amit Anand Tiwari, advocate in the Supreme Court and the additional advocate general for Tamil Nadu, said that the commission has been “ineffective in answering the question it was supposed to address.”
“The report has been ineffective in resolving the issue posed before the commission, i.e., genuine cases of the offender and the victim, both of a young and impressionable age, being in a consensual relationship. While being of the opinion that introducing the exception of consent would result in the same being misused and would negate the entire objective of the (POCSO) Act, the Commission has not taken into account the fact that the burden of proving such consent would have been on the accused, who would plead the same under Section 105 of the Indian Evidence Act, 1872,” he said.
“The sentencing exception has been created without any guidelines. It does not provide for any quantum of sentence, and the same has been left entirely to the discretion of the judge, who, despite the presence of exceptional circumstances, may award the maximum sentence. Further, the Commission has overlooked the provisions of the Probation of Offenders Act, 1958,” Tiwari told The Wire.
He added that the Commission has failed to notice that merely providing discretion in awarding sentences will still retain the stigmatic effect of conviction for an offence relating to moral turpitude, which will be treated as a very severe stigma throughout the life of the person convicted.
Bharat Chugh, Supreme Court advocate and former civil judge, said that while the recommendations are well-intentioned, they don’t go far enough.
“Certain cases of sexual experimentation between young people (with no indication of abuse of power or dominant position) should have been decriminalised,” he said to The Wire.
“In India, the process is more often than not, the punishment. Such criminal prosecutions (even if they don’t lead to jail but detention in the juvenile observation homes only) are punishment enough – by themselves. The power of the court to deal with such young accused with leniency is good and much better than the current system, but [the recommendation] doesn’t go far enough.”
He added that in cases where the accused is just above 18 years old (and the victim girl just below 18), the offence, which is currently non-bailable, should have been made bailable in the absence of any proof of abuse of dominant position and involvement of older accused.
“As a result of this, imagine a situation where a girl is 17 and the boy is 18 years 2 months. If an FIR is registered, the boy is almost always arrested and has to seek bail. This also needs to be dealt with.”
Ali said that the criminalisation ultimately defeats the purpose of protecting children.
“We understand that every child under the age of 18 needs to be protected, but you need to recognise the agency of children above 16. Ultimately, the goal is to protect children but in the process, if you are criminalising them, it defeats the purpose,” she said.