The Law Commission of India, in its recent report, has advised the Union government to retain the existing age of consent, which stands at 18, under the Protection of Children from Sexual Offences Act (POCSO), 2012. The recommendation comes in light of concerns surrounding child abuse, trafficking, and prostitution. The report states,
“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.”
The 283rd report, titled
“Age of Consent under the Protection of Children from Sexual Offences Act, 2012,”
was spearheaded by Justice Ritu Raj Awasthi and has been submitted to Union Minister for Law and Justice, Arjun Ram Meghwal.
The Commission’s report also suggests certain amendments to the POCSO Act, introducing judicial discretion in cases where there’s
“tacit approval in fact though not consent in law on part of the child aged between 16 to 18 years.”
The Commission believes that such cases should not be treated with the same severity as other cases under the POCSO Act. The recommendation aims to ensure that the law remains balanced, safeguarding the best interests of the child.
The Commission undertook this review after receiving references from the Karnataka and Madhya Pradesh High Courts. These references highlighted the increasing number of cases involving minor girls above 16 years engaging in consensual relationships, which subsequently attract the provisions of the POCSO Act and/or the Indian Penal Code, 1860.
Chief Justice of India D.Y. Chandrachud had previously expressed that the parliament should address concerns regarding the age of consent under the POCSO Act. In response, Union Minister for Women and Child Development, Smriti Irani, clarified that the government isn’t considering reducing the age of consent from 18 to 16 years.
The Law Commission’s report was formulated after extensive consultations with various stakeholders, including the National Commission for Protection of Child Rights (NCPCR), former judges, lawyers, child rights activists, NGOs, academicians, and data from the National Crime Records Bureau (NCRB).
The Commission emphasized the potential misuse of reducing the age of consent, stating that consent can always be manufactured. It also highlighted concerns about the potential negative impact on the fight against child marriage and trafficking.
Vidya Reddy, Executive Director of Tulir – Centre for the Prevention & Healing of Child Sexual Abuse, questioned the link between trafficking and not reducing the age of consent. Bharat Chugh, a Supreme Court advocate, opined that while the recommendations are well-intentioned, they don’t go far enough. He suggested that certain cases of sexual experimentation between young people should have been decriminalized.
The Commission believes that introducing judicial discretion in sentencing strikes a “delicate balance” and protects children from sexual exploitation. It recommends that such discretion can be introduced if the age difference between the victim and the accused is less than three years and when tacit approval is established.
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