~ This post has been authored by the Editorial Team of The Writ Review
The Law Commission of India, in its 283rd report titled “Age of Consent under the Protection of Children from Sexual Offences Act, 2012,” has recommended against amending the age of consent under the POCSO Act. This recommendation arises amidst increasing cases of romantic relationships between minors, where actual consent is present but not legally recognized. The report suggests amendments to the POCSO Act and the Juvenile Justice (Care and Protection of Children) Act, 2015. It is argued that the Law Commission’s recommendations do not effectively address the arising issues, and alternative amendments to the POCSO Act are proposed to directly tackle these challenges.
The Law Commission’s Recommendations
The report was initiated following references from the Karnataka and Madhya Pradesh High Courts. Both courts observed a rising trend of cases involving minor girls over 16 years of age engaging in romantic relationships, eloping, and engaging in sexual intercourse, thus invoking the POCSO Act’s provisions. Typically, the minor girl’s relatives, often parents, file complaints against the boy, leading to his prosecution. Although the minor girl may have given actual consent, the law deems her incapable of consenting to sexual activity. The POCSO Act criminalizes all sexual intercourse with minors under 18, with a minimum punishment of 10 years imprisonment.
Both courts suggested altering the age of consent under the POCSO Act. However, the Commission rejected this, reasoning that lowering the age of consent would make it easier for perpetrators of child abuse, trafficking, marriage, and prostitution to evade prosecution by claiming the child’s consent. Instead, the Commission recommends amendments to sections 4 and 8 of the POCSO Act and section 18 of the Juvenile Justice Act, aiming to increase judicial discretion in sentencing when the child is above 16 years of age.
Issues with the Recommendations
The proposed amendments are problematic for several reasons. First, even if implemented, sexual intercourse between a minor girl and a boy would remain an offense. The only change would be a potential reduction in punishment at the judge’s discretion. The core issue, as identified by the Karnataka and Madhya Pradesh High Courts, is not the punishment but the unnecessary prosecution itself. Prosecutions lead to numerous problems, including misunderstandings between the couple, financial losses, and severe mental trauma for their families. Often, complaints are lodged impulsively, and family members later become hostile to the prosecution’s case.
Second, the amendments require judges to consider various circumstances when exercising discretion, such as ensuring the child has not been exploited for pornography or trafficking, and that the accused has no criminal antecedents. However, some conditions are arbitrary and irrelevant. For instance, determining criminal antecedents or parental approval of the relationship is immaterial to the issue of consent. The focus should be on sexual consent, not marriage or relationship approval.
Suggestions and Concluding Remarks
While the recommendations increase judicial discretion in sentencing, they fail to address the problem of unnecessary prosecutions. The root cause is the ease of lodging complaints under Section 19 of the POCSO Act, which allows any person to file a complaint if they suspect a crime under the Act. This provision is crucial since minors often cannot lodge complaints due to fear or lack of knowledge.
To prevent unnecessary prosecutions, it is essential to carve out exceptions for minors above 16 or in cases indicating romantic relationships, or both. One approach is empowering special judges under the POCSO Act to quash complaints if satisfied that actual consent or a romantic relationship exists. Judges could assess the couple’s relationship and the accused’s behavior. Another measure is requiring the minor’s knowledge and consent for filing a complaint, allowing the judge to quash the complaint if absent.
In Veekesh Kalawat, the Madhya Pradesh High Court noted that the POCSO Act’s stringent application harms marginalized communities, where personal laws or customs allow marriage under 18. For instance, Muslim Personal Law permits marriage for girls above 15. The Karnataka High Court’s decision in Aleem Pasha, which held that POCSO overrides Muslim Personal Law, underscores this issue. Thus, an amendment to Section 19 of the POCSO Act could prevent such misuse. In conclusion, the Law Commission’s recommendations do not sufficiently address the problems highlighted by the High Courts. Alternative amendments are necessary to prevent unnecessary prosecutions and to balance protecting minors with recognizing consensual romantic relationships among older minors.