While acknowledging that the mental trauma and harassment faced by children who, on account of engaging in a consensual act, come to fall within the ambit of the POCSO Act, is an issue of concern, the Law Commission of India has stated that an outright reduction in age of consent will open a Pandora's Box.
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IN its 283rd report, the Law Commission of India has ruled out recommending to the Union government to reduce the age of consent from 18 years to 16 years under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
This is despite the commission acknowledging that the mental trauma and harassment faced by children who, on account of engaging in a consensual act, come to fall within the ambit of the POCSO Act, is an issue of concern.
The commission has, however, recommended amendment in the POCSO Act to provide greater judicial discretion in sentencing in cases where there is tacit approval in fact though not consent in law on the part of the child aged between 16 to 18 years.
The commission sent its report to the Union Law Minister on September 27. It had received a reference from the Karnataka High Court last year asking the commission to rethink 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 with the boy, thereby attracting the provisions of the POCSO Act.
The commission also received a reference from the High Court of Madhya Pradesh earlier this year, drawing the attention of the commission to the gross injustice being caused by the POCSO in its current form.
The report states that the three possible solutions that came up during the deliberation before the commission are:
(a) Blanket reduction in the age of consent to 16 years as was the situation prior to enactment of the POCSO Act.
(b) To introduce a limited exception in case of consensual sexual act involving a child above the age of 16 years.
(c) To introduce judicial discretion in sentencing in cases of consensual romantic relationships between adolescents or with an adolescent between the age of 16 to 18 years.
“If there is an automatic decriminalisation once the defence of consent is claimed, then it must be borne in mind that consent is something that can always be manufactured.
The commission says that the first proposed solution, that is, the blanket reduction in the age of consent, will lead to many unintended consequences of a much more severe nature.
"If there is an automatic decriminalisation once the defence of consent is claimed, then it must be borne in mind that consent is something that can always be manufactured.
"The data available clearly reflects that most perpetrators are someone close to the child or someone the child knows including from their own family," the report states.
The report adds that the police investigation suffers from a great number of inadequacies and if it is the investigating agencies that gets to determine if there was consent or not, then a lot of genuine cases that need to be prosecuted under the POCSO Act may not see trial on account of investigating agencies themselves declaring them to be cases of consensual romantic sexual relationship.
"Such a dilution will provide an easy route to reduce the cases under the POCSO Act or deal with them without getting into the complexity of issues that surround such a trial, thereby reducing the POCSO Act to a 'paper law'.
"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," the commission underscores.
Regarding the second proposed solution, that is, to introduce a limited exception in case of a consensual sexual act involving a child above the age of 16 years, the commission is of the view that carving out a limited exception for sexual relations with a child above 16 years is equally concerning and prone to misuse.
"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 commission notes in its report.
The commission refers to the increasing incidents of grooming and cyber-crimes such as sextortion as classic examples of how children in this vulnerable age group can be trapped and exploited.
Naivety, the commission says, is no reason to deprive these children of a higher protection under law that the Parliament in its wisdom thought fit to establish.
“A dilution will provide an easy route to reduce the cases under the POCSO Act or deal with them without getting into the complexity of issues that surround such a trial, thereby reducing the POCSO Act to a 'paper law'.
The commission also mentions the incidents from Assam. It claims that in Assam, some parents arrange marriage between minors or a minor and an adult by signing notarised agreements stating that the minor or the minor and the adult have fallen in love.
Thus, the commission says, 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 commission also states that victims themselves identify friends and boyfriend or girlfriend as the most common perpetrators across all acts of child sexual abuse, including penetrative assaults.
"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," the commission says.
The commission also takes note of the argument that the age of consent and age of marriage ought not to be conflated as they serve different purposes. The commission says in practice, given our social milieu, the two are intrinsically linked.
"In many cases before 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. Further, if as a result of sexual intercourse, the girl gets pregnant, then marriage may be the consequence in such cases," the commission says.
The commission opines that introducing the element of consent can provide an opportunity to child abusers to escape the rigours of law and enjoy impunity by using loopholes.
The third proposed solution, that is, introducing judicial discretion in sentencing, has found favour with the commission. It says this strikes a delicate balance between addressing 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," the commission says.
The commission also takes note of Section 375 of the Indian Penal Code. Clause sixth of Section 375 of the IPC, the commission states, may still be invoked against the accused if the victim girl is below 18 years of age.
“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.
Even though Exception 2 of Section 375 exempts a husband from any liability of rape under the Section for indulging in sexual intercourse with his wife who is above the age of 15 years, the Supreme Court, in the case of Independent Thought versus Union of India read down Exception 2 to Section 375 to the extend that 15 years is to be read as 18 years.
Thus, the 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.
On this aspect, the commission says if a certain reprieve is sought to be granted to the accused under the POCSO Act in cases of adolescent romantic relationships, the same would be meaningless without a corresponding amendment in Section 375, IPC punishable under Section 376 of the IPC.
The commission explains that this is so that the reprieve under the POCSO Act can be claimed by the lover of a child. The alleged offence in question shall continue to be penalised under Section 375, IPC for a lover or a husband of a child.
The commission has recommended amending Section 4 of the POCSO Act to the effect that a special court be given discretion to impose any lesser sentence on the accused than the minimum sentence prescribed, taking into account all the facts and circumstances of the case where:
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In addition, the special court can also take the following factors into consideration:
Under the Juvenile Justice (Care and Protection) (JJ) Act, 2015, a child can be prosecuted as an adult if he is accused of committing a heinous crime and if the board constituted under the JJ Act opines so.
“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.
To prevent the anomaly, the commission has also recommended amendment to Section 18 of the JJ Act to the effect that a proviso be added as follows:
"Provided that where a child in conflict with law is found to have committed any sexual offence under the POCSO Act or any other law for the time being in force against a child aged sixteen or above, having regard to the facts and circumstances of the particular case, if the Juvenile Justice Board or the special court, as the case may be, is satisfied that there exist special and adequate reasons, to be recorded in writing, it may pass any appropriate dispositional Order under this Section."
The commission has also recommended suitable amendments to Section 375 and 376 IPC in view of the conflict that may arise between the POCSO Act and Section 375 IPC if a certain reprieve is sought to be granted to the accused under the POCSO Act in cases of adolescent romantic relationships.