The Law Commission has submitted its recommendation to the Law Ministry regarding increasing the age of consent from 18 to 16 years under the POCSO Act.
The Law Commission has recommended not reducing the existing age of consent. It has said that it should be left to the discretion of the judges.
The Law Commission has stated the need to bring some amendments in the POCSO law in cases of such consent.
The Commission suggests guided judicial discretion. Cases where it is “consensual” and there is “tacit acceptance” do not need to be taken as seriously as those that generally fall under POCSO.
The Commission believes that it is not appropriate to tamper with the existing age of consent under the POCSO Act.
However, after carefully considering all the views and suggestions in this regard, the Commission considers it necessary to bring some amendments in the POCSO Act to improve the situation in those cases in which there is actually tacit consent. However, there is no consensus in law.
The Law Commission has said that, in our considered opinion, such cases do not need to be dealt with the same seriousness as was envisaged for cases which would ideally fall under the POCSO Act.
Therefore, the Commission considers it appropriate to apply guided judicial discretion in the matter of punishment in such cases. This will ensure that the law is balanced and thus protects the best interests of the child.
Earlier, CJI DY Chandrachud had also expressed concern over the increasing sexual exploitation of children in the country and called it a hidden problem.
He also urged the legislature to consider the growing concern regarding the age of consent under the POCSO Act.
He said that you are aware that the POCSO Act criminalizes all sexual acts between people under the age of 18, even if there is consent between the minors. The presumption of law is that there is no consent between people under the age of 18.
The 22nd Law Commission said in its report that the age of consent (sex with mutual consent) under the POCSO law should not be increased from 18 to 16. Doing this will increase the possibility of misuse of the law.
In this, the Commission has advocated maintaining the basic strictness of the law, that is, it has been said that the minimum age for having physical relations with mutual consent should be maintained at 18 years.
However, in view of the cases related to its misuse, some safeguards have been put in place. Studies conducted on the use of this law revealed that parents are using it as a weapon against girls taking the decision to marry of their own free will. Many youths who have consensual relationships have fallen victim to this law. In such a situation, a demand was raised that the age of having consensual sex should be reduced.
The Law Commission headed by Justice Ruturaj Awasthi has asked to keep in mind that even if minors having sexual relations are consensual, the age difference between the two should not be too much. The report says that if the age difference is three years or more then it should be considered a crime.
Recommendation to test consent on 3 parameters, only then consider exceptions
1. While accepting exceptions, it should be seen whether the consent is not based on fear or inducement?
2. Drugs are not used.
3. This consent was not for prostitution in any way.
The Commission has said that instead of giving relaxation, unnecessary use should be stopped. While recommending keeping the age provision at 18 only, the Commission has suggested various types of relief and exceptions in the report.
While putting forward exceptions, the report has recommended that in such cases, the past of the young men and women having consensual relationships should be looked into and on the basis of that, it should be decided whether the consent was voluntary or not. What was the duration of their relationship?
According to the Commission’s report, the basic objective has been to prevent unnecessary use of the law instead of relaxing it.
For this, a recommendation has been made to increase the scope of the courts to take decisions at their discretion on a case-by-case basis.