Law Commission Recommends Not To Reduce Age of Consent Under POCSO Act, Suggests Discretion For Lenient Sentencing When Accused Is Also Adolescent [Read Report]
The Law Commission of India headed by Justice Ritu Raj Awasthi in its 283rd report has recommended not to reduce the age of consent from the present 18 years under the Protection of Children from Sexual Offences Act, 2012. However, the report has also expressed concerns over the recommendations made by various High Courts on the issue of reducing age while dealing with cases under the POCSO Act, for the victim from 16 to 18 years, in so far as it relates to a romantic relationship with the accused. “…In the light of influx of cases pertaining to romantic relationships between 16 to 18 year-olds, various High Courts in the country have echoed the opinion that either the age of consent be reduced to l6 years or the trial judge be given some kind of discretion while trying such cases so as to alleviate the harm and suffering that is inevitably caused to male children or adolescents who engage in consensual sexual relations with female children and are later prosecuted on account of the mandatory reporting requirement under law or at the behest of the girl child's family who disapprove of such relationship”, the report read.
As per the report, the Commission after considering the existing child protection laws, various judgements, maladies of child abuse, child trafficking and child prostitution was of the opinion that it is not advisable to tinker with the existing age of consent under the POCSO Act. It is pertinent to note that 18 years is the existing age of consent. However, was also of the opinion 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. As, 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 also cautioned the courts to tread with caution while dealing with such cases as an adolescent love cannot be controlled and that the criminal intention may be missing in such consensual acts.
In the detailed report, the Commission carved out three broad possible solutions: (a) blanket reduction of the age of consent to 16 years as was the situation prior to enactment of the POCSO Act; or (b) to introduce a limited exception in case of consensual sexual act involving a child above the age of 16 years; or (c) to introduce judicial discretion in sentencing in cases of consensual romantic relationship between adolescents or with an adolescent between the age of 16 to 18 years.
While raising concerns over the first two suggestions, the report, however, agreed on the third solution to deal with the present concerns. The report thus read, “Introducing judicial discretion in sentencing seems to strike a delicate balance to address the issue at hand and at the same time protecting children from sexual exploitation. 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 l6 years for the alleged act in question”. Though it also warned that the discretionary power of the Special Court in ascertaining consent is to be exercised at all then it ought to be limited and guided so as to prevent misapplication.
Several Cases Of Minor Girls Above 16 Years Having Sexual Intercourse
The report formed basis on the suggestions of two High Courts, where they had sought Law Commission’s intervention to re think the age-criteria provided under the POCSO Act. ln State of Karnataka v. Basavraj S/O Yellappa Madara , the Dharwad Bench of the High Court of Karnataka, while dealing with a under the POCSO Act wherein the victim was a girl aged 17 years and 9 months who had eloped with the accused. The two had subsequently married and had two children. The accused was acquitted by the Special Judge as the prosecution had failed to bring forth sufficient evidence to successfully establish the case, and on appeal even the High Court confirmed the order of acquittal.
“Having come across several cases relating to minor girls above the age of 16 years having fallen in love and eloped and in the meantime, having had sexual intercourse with the boy, we are of the considered opinion that the Law Commission of India would have to rethink on the age criteria, so as to take into consideration the ground realities”, the High Court had observed.
Minor Girls Above 16 Years In Consensual Relationships
While in the Madhya Pradesh High Court’s reference in Veekesh Kalawat v. State of Madhya Pradesh, the Court was seized with a similar case of child sexual assault under the POCSO Act, wherein a minor girl had voluntarily eloped with a boy and the relationship had also resulted in their marriage and birth of a child. While rendering its judgment, it had sought to allow discretion to the Special Judge, “…h) Where the prosecutrix is below the age of consent but de facto consent is apparent, not to have a minimum sentence and instead give the discretion to the Special Court (who is a senior Session Judge equally with more than twenty years of judicial experience) to impose a sentence as per the facts and circumstances of the case, which can extend up to twenty years and (b) Where the prosecutrix is below the age of consent and the relationship has culminated in marriage (with or without children), there should not be any sentence of imprisonment and instead the Special Court be empowered to impose alternate correctional methods like community service etc ".
Amongst the several recommendations made by the Commission, the most important is the amendment suggested to Section 4 of the POCSO ACT which provides for the punishment for penetrative sexual assault. After sub-section (3) to the provision, sub-sections (4), (5), (6), (7), (8) and (9) are to be inserted as per the suggested amendment, for the Special Judge exercising discretion to consider certain facts to impose lesser punishment:
(5) While considering the facts and circumstances mentioned in sub-section (4), the Special Court shall take into account the following: (a) that there was tacit approval of the child, though not consent in law, for the acts leading to the offence; (b) that the difference in age between the accused and the child is not more than three years; (c) that the accused has no criminal antecedents; (d) that the accused bears good conduct after the occurrence of the offence; (e) that there is no element of undue influence, fraud, misrepresentation, coercion, force, violence or deceit perpetrated on the child by the accused or any other person on behalf of the accused; or any element indicating child trafficking; (f) that the accused is not in a dominating position to intimidate the child, parents or relatives of the child or the witnesses; (g) that there is no change in the social or cultural background of the child, indicating an element of manipulation or indoctrination ; and (h) that the child was not used by the accused or at his instance by any other person for pornographic purposes or for any illegal or immoral activity.
(6) While considering the facts and circumstances mentioned in sub-section (4), the Special Court may also take into account the following: (a) that the accused married the child on attaining majority of the child and they are leading a happy married life; (b) that the family members of the accused or that of the child or that of both of them accept and approve the relationship between the accused and the child; (c) whether any child was born in the relationship between the accused and the child; (d) any other similar and convincing circumstances for exercising the discretion by the Special Court.
Explanation:- Mere claim of marriage or birth of a child in the relationship between the accused and the child, shall not ipso facto entitle the accused for a lesser sentence unless the circumstances mentioned under sub-section (5) are satisfied.
(7) Any accused to whom sub-sections (4), (5) and (6), as the case may be, apply would not be disentitled to the lesser sentence merely because he committed penetrative sexual assault on the child more than once or repeatedly, or that he has impregnated the child, notwithstanding anything contained in clause (l) of section 5 or sub-clause (ii) of clause (j) of section 5, respectively.
(8) The Special Court may get the assistance of experienced psychologists or psycho-social workers or other experts for the purpose of ascertaining any of the matters relating to sub-sections &), (5) and (6).
(9) The Special Court may pass such orders as are necessary for protecting the interests of the child till the child attains the age of eighteen years.
Inclusion of Proviso and Explanation in Section 18 of the Juvenile Justice Act, 2015 has also been suggested the report. The Commission has further recommended to spread awareness regarding Child Sexual Abuse, Sexual & Reproductive Health as well as the provisions of the POCSO Act. It said that the subject matter should be made a part of their school curriculum, children can be made aware of their body and various physiological and psychological changes they experience as a part of growing up.
“Comprehensive and age-appropriate sex education should be made a mandatory part of school curriculum and govemment programs like Rashtriya Kishor Swasthya Karyakram should be utilised to inform and empower the adolescent population of India”, it read. The Commission, however, was of the opinion that the Indian Penal Code does not require any further amendments to suit the subject matter as the amendment in Section 375 or 376 of the IPC, as is found suitable.