Published on: 30 September 2023 at 00:35 IST
The Law Commission of India, in its 283rd report on the ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012’ has expressed concerns about the blanket criminalization of sexual activity among teenagers as per the POCSO Act.
However, the Commission has ruled out lowering the age of consent to 16 years or providing limited exceptions in cases involving a child above the age of 16 years. Instead, the Commission has suggested granting judicial discretion to courts to impose sentences less severe than the minimum prescribed when the child is 16 years or older and the age difference between the individuals involved is not more than 3 years.
Also Read: What is POCSO Act, 2012?
Additionally, the Commission has recommended amendments to the Juvenile Justice (Care and Protection of Children) Act 2015, enabling the Juvenile Justice Board to handle cases under the POCSO Act where both parties are between 16 and 18 years of age, rather than criminal courts.
The suggested changes to Section 18 of the JJ Act empower the JJ Board to dispose of such cases by awarding sentences other than imprisonment, such as admonishment, community service, counseling, or release on probation, subject to good conduct.
The Commission has identified two main categories of cases: those involving adolescents aged 16 to 18 years on both sides and those involving one party aged 16 to 18 years and the other party as an adult.
While the first category is recommended to be handled under the JJ Act, the Commission has advised caution regarding the second category, suggesting that these cases be dealt with by Special Courts with the authority to exercise judicial discretion and consider the specific circumstances when imposing sentences.
Amendments Proposed to the POCSO Act:
The report proposes certain amendments to the POCSO Act in cases of tacit consensual sex involving children aged 16 to 18. In such cases, the Commission recommends not treating them with the same severity as cases that clearly fall under the POCSO Act. Although the Commission advises against lowering the age of consent, it recommends introducing ‘guided judicial discretion’ in sentencing for cases involving tacit consent.
The Commission has emphasized that lowering the age of consent is not advisable, stating, “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.”
Factors to Be Considered by the Special Court
The Commission recommends amending Section 4 of the POCSO Act, which deals with punishment for penetrative sexual assault, by adding subsections (4) to (9). These additions provide the Special Court with the discretion to impose lesser sentences based on various factors, including the child’s tacit approval, the age difference between the parties, the absence of criminal antecedents, good conduct by the accused, and the absence of undue influence or coercion.
Moreover, the Special Court may seek the assistance of experienced psychologists or psycho-social workers to assess relevant matters, and it can issue necessary orders to protect the child’s interests until they reach the age of eighteen years.
Adolescents Involved in Sexual Activity to Be Treated under the JJ Act.
The report also suggests that in cases of sexual offenses under the POCSO Act against children aged 16 or older, the case may be disposed of under Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2015, if the Juvenile Justice Board or the Special Court determines that special and adequate reasons exist.
These reasons of determining included circumstances outlined in Sections 4 and 8 of the POCSO Act, such as tacit approval of the child and a minimum age difference of 3 years between the consenting parties.
The recommended proviso and explanation are to be added to Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2015, allowing the Juvenile Justice Board to impose sentences other than imprisonment, such as admonishment, community service, counseling, or release on probation with good conduct conditions.
It is worth noting that last year, the Karnataka High Court had instructed the Commission to reconsider the age of consent to address concerns related to teenage relationships. Several other High Courts have also expressed reservations about the criminalization of adolescent sexual activity.
The report was prepared by a panel led by Justice Rituraj Awasthi (former Karnataka HC CJ), Justice KT Sankaran (former Kerala HC CJ), Professor (Dr) Anand Paliwal, and Professor DP Verma.