Law Commission Against Lowering Age Of Consent Under POCSO Act

Relevance: GS2 - Statutory, regulatory and various quasi-judicial bodies, Government policies and interventions for development in various sectors and issues arising out of their design and implementation

(Source: The Hindu, 09/30/2023)

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Why in the news?

• Recently, a report prepared by the Law Commission of India recommended to the Union Government not to make any changes to the age of consent under the Protection of Children from Sexual Offenses Act.
• Various High Courts had asked the Commission to consider the matter as many adolescents are being prosecuted for consensual relationships with minor girls since the introduction of the POCSO Act.

What has the Law Commission said about the age of consent?

• In Report 238 prepared by the 22nd Law Commission, it advised the government not to change the present provisions related to the age of consent.
• It cited the need for amendments to the POCSO Act regarding tacit approval without altering the age of consent.
• Reductions in the age of consent could negatively affect the government’s efforts to tackle social evils such as child marriage and child trafficking.
• It advised courts to adopt a cautious approach when dealing with cases involving “adolescent love” even in the absence of criminal intentions.

Guided judicial discretion

• It recommended the introduction of “guided judicial discretion” in cases involving tacit approval given by 16 to 18-year-olds.
• In order to protect the interests of the child, the judiciary must use its discretion as cases involving tacit approval do not merit the same level of sentencing as non-consensual cases.

Judicial perspective

• In November 2022, the Dharwad bench of the High Court of Karnataka referred the issue of the age of consent to the Law Commission.
  • It asked the Commission to reconsider the age criteria for consent in light of the rising number of cases of eloping and sexual relations involving minor girls above the age of 16.
• In April 2023, the Gwalior bench of the Madhya Pradesh High Court observed that the enforcement of the present form of the POCSO Act had led to injustices in cases of statutory rape which involved de facto consent.
• In August 2023, the Bombay High Court claimed that it is necessary for India to consider reducing the age of consent.
• In the Vijayalakshmi vs. State of Tamil Nadu case (2021), the High Court of Madras proposed a potential redefinition of the term "child" within Section 2(d) of the POCSO Act.
  • This redefinition would lower the age from 18 to 16. The court recommended that consensual relationships should ideally maintain an age gap of no more than five years.
• In Dharmendra Singh v State Govt of NCT (2020), the Delhi High Court attempted to increase the chances of bail of an accused in cases where there is tacit approval or the gap in ages between the victim and offender is less.

Why has there been a demand for lowering the age of consent?

• Regulation of Consensual Relationships: Activists have raised concerns about the regulation of consensual relationships under the Protection of Children from Sexual Offences (POCSO) Act.
  • They argue that the Act mixes up and criminalizes both exploitative sexual practices and general sexual expression among adolescents.
• Unintended Consequences: The POCSO Act which was meant to protect children has inadvertently turned into a tool to silence non-exploitative consensual relationships between minors.
  • However, this legal framework tends to desexualize minor girls and overlooks the possibility of voluntary sexual activity among them.
• Neglecting Social Realities: Criminalizing adolescent sexuality fails to acknowledge the social reality.
  • According to the NFHS-5, 39% of women had their first sexual experience before turning 18, and 45% of unmarried girls aged 15-19 use contraception, suggesting sexual engagement among unmarried adolescent girls.
• Parens Patriae: While aiming to protect children from sexual offenses in its role as Guardians or “Parens Patriae” the state is also prosecuting youth under these laws.
• Strain on the Judicial System: According to the NCRB’s “Crime in India 2021” Report, there has been a 180% increase in the number of juveniles arrested under the POCSO Act between 2017 and 2021.
  • Criminalization of underage sexuality, which accounts for 25% of total POCSO cases, could strain the overburdened court system and impede the criminal justice process.
• Victim's Privacy: The intersection of POCSO, the Medical Termination of Pregnancy (MTP) Act, and the Child Marriage Act creates a complex socio-legal web that infringes upon the minor girl's rights to dignity, liberty, sexual and reproductive health, and undermines her privacy.
  • This has also contributed to a lack of sexual awareness among young girls.

POCSO Act

• The Protection of Children from Sexual Offenses Act was enacted in 2012 to establish a strong legal framework for the protection of children from sexual assault, sexual harassment, and pornography offenses, while also protecting children's interests at all stages of the judicial process.
• The government has notified the Protection of Children from Sexual Offences Rules, 2020, which allows the implementation of recent amendments to the Act.
• Implementing Ministry: Ministry of Women and Child Development
• Features:
  • Gender-neutrality: The POCSO Act attempts to make the legal framework available to child sexual abuse victims gender-neutral by defining a child as "any person" under the age of 18.
  • No time limit: Victims may report an offense at any time, even years after the abuse has occurred.
  • Efficiency: Child sexual abuse cases must be disposed of within one year from the date of reporting the offense.
  • Mandatory reporting: It makes the reporting of sexual abuse a legal obligation for anyone who is aware of the offense and stipulates imprisonment of six months or a fine for those who violate this provision.
  • Safeguards: It institutes safeguards to make children's interaction with the criminal justice system 'child-friendly'.
  • Protectors: It depicts the police as child protectors during the investigative process.

Other Report prepared by the Commission

• Report 282 prepared by the Law Commission recommended amending Section 154 of the Criminal Procedure Code, 1973 in order to enable the registration of e-FIRs.
• It will be introduced in a phased manner beginning with offences with a jail term of up to three years.
• This would ensure that crime reporting would not be disrupted.
• It recommended that registration of e-FIR should be allowed for all cognizable offenses in which the offender is not known.
• Technological advancements have made it possible to reform the existing archaic system of FIR registration and ensure justice.
• Benefits:
  • Eliminate persistent delays in FIR registration
  • Enable citizens to report crimes in real time.
  • Enable transparency

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FAQs

MCQs

Question: Which of the following are envisaged by the Right against Exploitation in the Constitution of India? (UPSC 2017)

1. Prohibition of traffic in human beings and forced labor
2. Abolition of untouchability
3. Protection of the interests of minorities
4. Prohibition of employment of children in factories and mines

Select the correct answer using the code given below:

(a) 1, 2 and 4 only

(b) 2, 3, and 4 only

(c) 1 and 4 only

(d) 1, 2, 3 and 4

Question: Consider the following statements about the POCSO act:

1. It sets a uniform age of consent for all children, irrespective of their gender or sexual orientation.
2. Complaints can only be filed within a six-month period after the incident.

Which of the above statements is/are correct?

(a) Only 1

(b) Only 2

(c) Both 1 and 2

(d) None of the above