Place the Child at The Centre

Why in News?

• The 283^rd report of the Law Commission has recommended the government to retain the existing age of consent (18) under the Protection of Children from Sexual Offences (POCSO) Act which appears to be a lost opportunity.
• The judicial references called for reviewing the criteria for the age of consent to sexual activity, to mitigate the gross injustice in cases of statutory rape where de facto consent is present.

The Protection of Children from Sexual Offences (POCSO) Act

• It is the first comprehensive law(enacted in 2012) in the country dealing specifically with sexual abuse of children, and is administered by the Ministry of Women and Child Development.
• It was intended to protect children from sexual assault, sexual harassment, and pornographic violations, as well as to establish Special Courts for such trials.
• In 2019, the Act was amended to strengthen the penalties for specified offences in order to deter abusers and promote a dignified upbringing.

Key Provisions of POCSO Act

• Gender-Neutral Legislation: The Act defines a child as "any person" under the age of 18.
• Non-Reporting is a Crime: Any person in charge of an institution (excluding children) who fails to report the commission of a sexual offence involving a subordinate faces punishment.
• No Time Limit for Reporting Abuse: A victim may report an offence at any time, even years after the abuse has occurred.
• Keeping Victim’s Identity Confidential: The Act forbids the disclosure of the victim's identity in any form of media unless authorised by the special courts established by the Act.

Concerns Around the POCSO Act

• Increasing Criminalisation of Adolescent Sex
  • The increase in the age of consent from 16 to 18 years with the enactment of the POCSO Act, has increased criminalisation of adolescents engaged in non-coercive consensual sexual activity.
  • This has devastating outcomes, primarily for adolescents and youth from marginalised populations.
• Magnified the Volume of Prosecutions
  • The increase in the age of consent has magnified the volume of prosecutions against persons under 18.
  • POCSO and equivalent provisions of the Indian Penal Code impose a mandatory minimum sentence of 10 years for statutory rape without regard to whether the minors, including those between 16-18, consent.
  • For instance, in Veekesh Kalawat vs State of MP (2023),the mandatory minimum sentence of 10 years was challenged.
  • In this case, a minor girl had eloped with a boy, married him, and had a child. The sentence for husbands resulted in disrupting and devastating families by sending the sole breadwinner in the family to jail.

Highlights of Law Commission’s Report Pertaining to the Age of Consent

• Govt Should Refrain from Reducing the Age of Consent: The report highlighted that reducing the age of consent would have a direct and negative bearing on the fight against child marriage and child trafficking.
• Tacit Approval of Children in the 16-18 Age Bracket
  • The Law panel suggested amendments in the POCSO Act for cases where children aged 16 to 18 give tacit approval, not legal consent.
  • The panel also advised the courts to be cautious in cases related to adolescent love, where criminal intention may be missing.
  • This will ensure that the law is balanced, thus safeguarding the best interests of the minors.
• Report Traces Historical Origins
  • Positions are divided between keeping the age of consent at 16 with close-in-age exceptions for consenting sexual conduct between peers and raising the age of consent to 18, as POCSO did.
  • Close-in-age exception is where a person who makes sexual contact with an underage person is exempted from being prosecuted if they are no more than 3 years older than the underage person.

Criticism of the Report

• Report Outlines Approaches in Foreign Countries
  • The report outlines approaches adopted in the US, Canada, Japan, Australia, and South Africa, all of which have lower ages of consent.
  • Additionally, they protect adolescents from shame and stigma for consensual sexual activity through close-in-age exceptions.
• Limited Consultations: Its stakeholder consultations were limited, missing inputs from public health experts, gynaecologists, child psychologists, counsellors, and shelter homes, whooffer valuable insights.
• Proposed Way of Mitigation is Flawed
  • By way of mitigation, the report recommends judicial discretion to award less than the mandatory minimum sentence of 10 years.
  • It also provides guidelines for determining types of cases that are befitting of sentence reduction. The proposed mitigation is flawed. 

Flaws in LCI’s Proposed Way of Mitigation

• The Exception Allows Sentence Reduction Not Waiver
  • The close-in age exception operates at the sentencing stage, so consensual sexual activity with a minor between 16 and 18, even where the accused is not more than three years apart, remains an offence.
  • Had this exception been available as a defence, the accused might have had a chance of acquittal.
  • Further, the exception allows sentence reduction, not sentence waiver, so the taint of criminalisation and incarceration remains.
• Introduction of a New Term ‘Tacit-Approval’ Without A Proper Definition
  • A new term, tacit approval, introduced to replace consent, is without definition and confusing. Consent is defined in law, backed by jurisprudence.
  • Consent to medical examination is recognised for victims of sexual assault who are 12 years and above in the Ministry of Health and Family Welfare guidelines.
• Inadequate Checklist of Circumstances
  • The Report provides a checklist of circumstances to guide whether or not exemption operates.
  • However, this is not limited to exploitative and coercive situations but also includes caveats that there be no change in the social or cultural background of the child.
  • This indicates an element of manipulation or indoctrination which are likely references to inter-faith and inter-caste relations.

Way Forward

• Protecting the Young from Shame
  • Protecting the young from sexual abuse is of universal concern, which POCSO aims to serve.
  • But the task of protecting the young from being shamed, punished, and incarcerated for exploring what is developmentally appropriate for their age is equally important.
• Need to Address the Fear of Criminalisation
  • The onset of puberty at 10-11 years brings with it the biological, psychological, and emotional stirrings of sexuality, the desire to learn and explore.
  • Early marriage is a socially sanctioned way of confining girls' sexuality within marriage in order to serve the socio-cultural order.
  • The growing consensus against early marriage has resulted in it being replaced by abstinencethrough the fear of criminalisation.
• Differential Protection for Persons Under 18: According to the Convention on the Rights of the Child (CRC), persons under 18 years need differential protection corresponding to their evolving capacities.
• Employ Social Security Measures for Better Protection
  • The data in India shows that criminalisation selectively strikes at the poor and the marginalised, with devastating consequences for girls.
  • The state has no obligation under the POCSO to provide for the basic minimum required for the survival of the so-called ‘survivor’.
  • In other words, far from protection, criminalisation renders girls vulnerable to greater violations, and if protection is paramount, it is best secured through social security measures.

Conclusion

• Law Commission recommendations on age of consent ignore key question of how to protect the young from sexual abuse while ensuring they are not punished for consensual sexual activity with peers.
• Now the matter rests with the courts to address, with sensitivity on a case-to-case basis, and the continuation of public dialogue.

Q1) Why the Law Commission said age of consent cannot be reduced?

In arguing against the automatic decriminalisation of consensual sexual acts by persons above 16 years, the commission said that consent can always be manufactured. It also said that if the police or investigating agencies are to determine whether there was consent or not, a lot of genuine cases under POCSO may not see trial on account of the agencies declaring them to be cases of consensual romantic sexual relationship.

Q2) What is the main objective of the Law Commission of India?

The main function of the Law Commission is to conduct legal research and review existing laws to bring in reforms. Some of the other functions of the Law Commission are mentioned below. Repeal or review of obsolete laws. Identifying laws that are no longer relevant and can be repealed immediately.

Source: The Indian Express