Abstract:- The Protection of Children from Sexual Offences (POCSO) Act, 2012, is a law in India that deals with sexual offences against children. Recently, there has been a lot of debate regarding the Age of Consent under the POCSO Act of 2012. According to the Act, the age of consent for any sexual activity involving a child is 18 years old. This means that any sexual activity with a person under the age of 18, even if there is consent, is considered a criminal offence.
This blog delves into the details of the age of consent under the POCSO Act and new developments taking place regarding the same.
Introduction:- In the realm of human rights and social justice, the responsibility of the state towards its children is of paramount importance. Ensuring the development and protection of children is not only a moral but also a legal obligation that every state bears. Justice Bhagwati has stated, “If a child is a national asset, the state must look after the child to ensure the full development of its personality”. The POCSO Act 2012 plays a very important role in safeguarding minors from sexual exploitation and abuse and providing a legal framework for prosecuting those who commit such offences.
It is essential to understand and adhere to the provisions of this act to prevent the sexual exploitation of children and ensure their safety and well-being. The Act was enacted when cases of sexual abuse against children were rapidly rising. Before this, the sole legislation in India that aimed at protecting the rights of children was the Indian Penal Code, 1860 under sections 354, 375 and 377, but these provisions were only in respect of females. Owing to the lack of any specific legislation, it was necessary to establish a statute that focused on the growing issues of child sexual abuse in the country which is also gender neutral. With a lot of effort POCSO Act, 2012 came into force on 14th November 2012. It not only spells out the punishments for offences but also sets a system of support for victims and improves methods for catching offenders. 3 It contains provisions regarding the protection of children from sexual assault and pornography and lays down the procedure for the implementation of these laws.
What is the "Age Of Consent"?
The POCSO Act itself does not directly define or explain the “age of consent.” It
criminalizes sexual activities with a child regardless of consent. This means that any form of penetrative or non-penetrative sexual activity with a child is punishable, even if the child willingly participated. Section 2(d) of the POCSO Act defines a child as someone who is below the age of 18 years. The POCSO Act is thus a gender-neutral act; the child could be a male or a female, and the person who commits the crime can also be either and will be punished regardless of gender.
Why is it in the news recently?
The failure of POCSO to address adolescent sexuality has been recognised as a legal grey area by the courts. 4 Various High Courts in the country have suggested that either the age of consent be reduced from 18 years to 16 years for the huge number of cases about romantic relationships between 16-18-year-olds or that the trial judges be given some kind of discretion while trying such cases.
These instances mostly feature parents accusing the young men of rape that their teenage daughters dated or eloped. While the government has remained silent on lowering the age of consent to 16, there have been debates about establishing a standard legal marriage age of 21 for both males and girls.
The abuse of the process is evident from the fact that between 2010 and 2013, a total of 1,728 cases were registered in Tamil Nadu, of which 1,274 cases remain pending after a decade. The Madras High Court has decided to identify the cases that involve a consensual relationship and cancel them if they are impacting the future of the children involved. In December 2022, while speaking at the two-day national programme on implementation of the POCSO Act, 2012’s inaugural session, the Chief Justice of India urged the legislature to take into consideration the growing concern about the ‘age of consent’ under the Act. The CJI’s comments come at a time when several High Courts have called for an urgent need for legal reform to deal with “romantic cases” involving adolescents. Regarding the same, the 22nd Law Commission has submitted its recent report to the Union Minister for Law and Justice.
Law Commission’s stand on the issue:-
Law Commission released its 283rd report on “Age of Consent under the Protection of Children from Sexual Offenses Act, 2012” chaired by Justice Ritu Raj Awasthi.
“Adolescents in the age bracket of 16 to 18 years remain children who ought to enjoy higher protection of the law and the age of consent cannot be disturbed by reducing it to introducing a limited exception,” the commission in its report. The Law commission advised against “tinkering” with the existing age of consent under the POCSO Act, 2012 but agreed that the there is indeed a requirement to bring amendments in the Act to remedy the issue. The Commission further stated that lowering the age of consent would lead to ‘unintended consequences’ of a severe nature and would harm genuine cases, and the POCSO Act would be left as a mere law on paper.
“All children deserve the protection of the special law enacted for this very purpose and diluting the age of consent will deprive a significant portion of the child population, especially young girls aged 16 to 18 years, of the protection and expose them to unchecked exploitation. The increasing incidents of grooming and cyber-crimes such as sextortion are classic examples of how children in this vulnerable age group can be trapped and exploited,” the report said.
The Commission, therefore, deems it fit to introduce guided judicial discretion in such
matters and that it would strike a “delicate balance” and safeguard the children from
sexual exploitation. The report said, “There cannot be any automatic decriminalization of sexual acts with a person between the age of 16 to 18 years and craving out a limited judicial discretion at the stage of sentencing is a more reasonable approach.”
Putting the onus on the courts, the commission said that only a “judicially trained mind aided by experts will be able to appropriately determine whether the consent in fact of the child in question was indeed free from coercion, deception, fraud or undue
The commission has accordingly recommended that such judicial discretion in reducing
the minimum sentencing under the POCSO Act can be introduced if the age difference between the victim child and the accused is less than three years and when tacit approval is established. It has also recommended that discretion be used if the accused has no criminal antecedents, bears good conduct after the offence, there is no element of undue force, coercion, or any element indicating child trafficking; and the child was not used for any pornographic purposes, among others.
Conclusion:- The POCSO Act of 2012 was enacted with the primary objective of safeguarding children below the age of 18 from sexual offences, including sexual assault, harassment, and the production, distribution, or possession of child pornography. The Act casts a wide net of protection, recognizing the vulnerability of minors and their need for special care and attention in matters of sexual exploitation.
The age of consent issue under the POCSO Act, 2012 is a complex and sensitive matter. The fundamental principle underlying is to protect children from sexual exploitation and abuse while also ensuring that justice is served in cases involving adolescents. Recent developments have raised questions about whether the age of consent, set at 18 years under the POCSO Act, should be reconsidered, particularly in cases involving consensual relationships between 16-18-year-olds. Various High Courts have suggested potential reforms, including lowering the age of consent to 16.
However, the 22nd Law Commission in its report advises against tinkering with the age of consent itself but acknowledges the need for amendments to address the issue. The Commission recommends introducing judicial discretion during sentencing to strike a balance between protecting the children and ensuring fairness in cases involving consensual relationships. This discretion should consider factors such as the age difference between the victim and the accused, the absence of criminal intent, good conduct post-offence, the absence of coercion or child trafficking, and the absence of pornographic purposes.
Author’s Contentions:- The discussion around the age of consent under the POCSO Act reflects a commitment to protect children while addressing the complexities of adolescent relationships. A changed approach that emphasises a child’s capacity to comprehend rather than solely relying on the child’s age as a qualifying criterion. The original intent of enacting the POCSO Act was to safeguard children from sexual offences and sexual exploitation, not for it to be misused as a tool to manipulate the legal process or trap consenting adolescents in criminal proceedings. Adolescents need to be given the freedom to explore their sexuality on their own terms in a
healthy and safe environment. School education and mass awareness are the two main
ways to achieve the same.
Proper training should be provided to the investigating officers handling the POCSO cases in regard to collecting and preserving evidence, interviewing the child victims and witnesses, etc. Further, there should be a revision and updating of the POCSO Act in order to address the changing needs and realities of modern society.