Context: Law commission has recently come up with Report #283 Titled: Age of Consent Under the Protection of Children from Sexual Offenses Act, 2012, in which it has advised against changing the present age of consent under POCSO act which is 18 years. (Section 2(1)(d) of POCSO act defines: “child” means any person below the age of eighteen years.)
Issues related to Age of Consent under POCSO Act
- POCSO imposes a mandatory minimum sentence of 10 years for statutory rape without regard to minor’s (16-18) consent (POCSO is a gender-neutral act).
- POCSO Act, 2012 has led to the increase in age of consent from 16 to 18 years. This has increased the number of prosecutions of adolescents for indulging in consensual sexual activities among minors.
This has following concerns:
- Leads to shame and stigma associated with criminalization of consensual sexual activity.
- While these cases do not necessarily lead to conviction, the stringent law results into denial of bail and prolonged incarceration.
- Most people adversely affected with this provision are youth from poor and marginalized population, with adverse consequences particularly for girls.
- A study by UNICEF India conducted in WB, Assam and Maharashtra found that one is every four cases under the POCSO Act constituted “romantic cases” and consensual relationships.
- Often when the children (below 18) who elope or marry, the male partner is sent to jail and the women is usually pushed towards a life of poverty and destitution (observed in Veekesh Kalawat vs State of MP)
- State has no obligation under POCSO to provide basic minimum required for survival of the female and/or her child.
Views of Law Commission against reducing age of consent
- Existing age of consent (18 years) should not be tinkered due to dangers of child abuse, trafficking, and prostitution.
- Consent can be manufactured, thus a lot of genuine cases falling under POCSO might not see trial on account of agencies declaring them to be cases of consensual romantic relationships.
- In many cases, “consent” arises after the occurrence of alleged offence, thus reducing age of consent can provide escape to child abusers.
- Can lead to negative fallout on fight against child marriages.
- Emerging trends of grooming and cybercrimes such as sextortion against women, increase vulnerability of children to sexual exploitation necessitate a need for stringent protection.
- Provide a gateway to abuse of law leading to coercion of minor girls into subjugation, marital rape, and trafficking.
- Law Commission has suggested for introducing guided judicial discretion to deal with situation in case where there is tacit approval on part of child aged between 16 to 18 years.
However, scholars have emphasized placing the child at the center while formulating laws, while POCSO serves protection of young from sexual abuse, equally important is to protect young from being shamed, punished and jailed for exploring what is developmentally appropriate for their age.
- Age-appropriate sexuality education should be given in schools.
- Access to confidential medical counselling.
- Prohibiting laws from criminalizing consensual sexual activity with peers.
- Courts to address these matters with sensitivity and increased public dialogue.· “Close-in age” exception in case of consensual relationships as followed in USA and Canada can be looked into.