New Delhi:The Law Commission has said it is not advisable to tinker with the “existing age of consent under the POCSO Act”, however it stressed on introducing judicial discretion in sentencing in cases of consensual romantic relationship between adolescents or with an adolescent between the age of 16 to 18 years.
The commission, headed by Justice Ritu Raj Awasthi, in its 283rd report, said that while giving a blanket exemption to consensual sexual acts by persons above 16 years may seem like a panacea for the situation “we are faced with, however, the same will lead to many unintended consequences of much severe nature”. The commission said that reducing the age of consent will have a direct and negative bearing on the fight against child marriage and child trafficking, and carving out a limited exception for sexual relations with a child above 16 years is equally concerning and prone to misuse.
The commission said it is necessary 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. It said 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 age of consent is the age at which a person is considered legally capable of agreeing to marriage or sexual intercourse. At present the age of consent for sexual intercourse is 18 years on account of the POCSO Act. However, prior to the POCSO Act, there was no age of consent defined separately and it was fixed by virtue of Section 375 of the IPC, which defines "rape".
The commission noted that the blanket criminalisation of sexual activity amongst and with a child, though intended to safeguard children, is leading to incarceration of young boys and girls who engage in such activities as a consequence of sexual curiosity and need for exploration that may to some extent be normative for an adolescent. “There is a social cost associated with the present situation, including the negative impact upon the health, both physical and mental, of the children as well as a burden upon the investigating agencies and courts which takes away focus from the cases that are genuine and require immediate consideration”, said the commission.
It stressed that the consent of a child is no consent and reading the same would be deeply problematic and 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.
The commission said 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 in Assam, some parents arrange marriage between minors or a minor and an adult by signing notarized agreements stating that the minors or the minor and the adult have fallen in love. “Thus, any reduction in 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”, said the report.
The commission said 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 16 years," it said.