29 Sep 2023 1:28 PM GMT
The Law Commission of India in its 283rd report on the ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012’ has said that blanket criminalisation of sexual activity among teenagers as per the POCSO Act is a cause of concern. The Law Commission however ruled out reducing the age of consent to 16 years or giving limited exception in cases involving a child...
The Law Commission of India in its 283rd report on the ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012’ has said that blanket criminalisation of sexual activity among teenagers as per the POCSO Act is a cause of concern.
The Law Commission however ruled out reducing the age of consent to 16 years or giving limited exception in cases involving a child above the age of 16 years. Instead, the Commission suggested granting judicial discretion to Courts to impose less than minimum sentence where the age of the child is 16 years or above and the age difference between the persons is not more than 3 years.
The Commission has also recommended amendments to the Juvenile Justice (Care and Protection of Children) Act 2015 so that cases under the POCSO Act in which both the parties are aged between 16 to 18 years can be dealt with by the Juvenile Justice Board instead of the criminal courts. The Commission suggests changes to Section 18 of the JJ Act empowering JJ Board to dispose of such cases by awarding sentences other than imprisonment such as - admonishment, community service, counselling, release on probation on condition to maintain good conduct.
The Commission stated that there are broadly two categories of cases - one, where both the parties are adolescents aged between 16 to 18 years; two, where one party is aged between 16 to 18 years and the other party is an adult. While the first category of cases is suggested to be dealt with under the JJ Act, regarding the second category, the Commission has advised circumspection and proposed that they be dealt with by the Special Courts which are empowered with judicial discretion to award less than minimum sentence by considering the factual circumstances.
Amendments proposed to the POCSO Act
The report has recommended certain amendments to the POCSO Act in cases of tacit consensual sex with regard to children of 16 to 18 years of age. The Commission recommends such cases of consensual sex to not be dealt with the same severity as cases that would ideally fall under the POCSO Act. Though the commission has said that it is not advisable to reduce the age of consent, it has recommended amendments that introduce ‘guided judicial discretion’ in the sentencing of cases involving tacit consent.
“..having cautiously considered all the views and suggestions furnished in this regard, the Commission considers it necessary that certain amendments need to be brought in the POCSO Act to remedy the situation in cases wherein there is tacit approval in fact though not consent in law on part of the child aged between 16 to 18 years. This is so because in our considered opinion, such cases do not merit to be dealt with the same severity as the cases that were ideally imagined to fall under the POCSO Act. The Commission, therefore, deems it fit to introduce guided judicial discretion in the matter of sentencing in such cases. This will ensure that the law is balanced, thus safeguarding the best interests of the child,” the report says.
The Commission has however made it clear that reducing the age of consent would not be advisable. “After a careful review of existing child protection laws, various judgements 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 report says.
Factors to be considered by the Special Court
The Commission has recommended the following amendment to Section 4 of the POCSO Act which deals with punishment for penetrative sexual assault:
lt is recommended that after sub-section (3) of Section 4, the following may be inserted as sub-sections (4), (5), (6), (7), (8) and (9):
(4) Notwithstanding anything contained in sub-section (I), where the child on whom the offence is committed, was at the time of commission of the offence, of the age sixteen or above, and where the Special Court is satisfied, for reasons to be recorded in writing, that the relationship between the accused and the child has been intimate, the Court may, in its discretion, impose any lesser sentence on the accused than the minimum sentence prescribed under sub-section (l), taking into account all the facts and circumstances of the case.
(5) While considering the facts and circumstances mentioned in sub-section (4), the Special Court shall take into account the following:
(a) that there was tacit approval of the child, though not consent in law, for the acts leading to the offence;
(b) that the difference in age between the accused and the child is not more than three years;
(c) that the accused has no criminal antecedents;
(d) that the accused bears good conduct after the occurrence of the offence;
(e) that there is no element of undue influence, fraud, misrepresentation, coercion, force, violence or deceit perpetrated on the child by the accused or any other person on behalf of the accused; or any element indicating child trafficking;
(f) that the accused is not in a dominating position to intimidate the child, parents or relatives of the child or the witnesses;
(g) that there is no change in the social or cultural background of the child, indicating an element of manipulation or indoctrination; and
(h) that the child was not used by the accused or at his instance by any other person for pornographic purposes or for any illegal or immoral activity.
(6) While considering the facts and circumstances mentioned in sub-section (4), the Special Court may also take into account the following:
(a) that the accused married the child on attaining majority of the child and they are leading a happy married life;
(b) that the family members of the accused or that of the child or that of both of them accept and approve the relationship between the accused and the child;
(c) whether any child was born in the relationship between the accused and the child;
(d) any other similar and convincing circumstances for exercising the discretion by the Special Court.
Explanation:- Mere claim of marriage or birth of a child in the relationship between the accused and the child, shall not ipso facto entitle the accused for a lesser sentence unless the circumstances mentioned under sub-section (5) are satisfied.
(7) Any accused to whom sub-sections (4), (5) and (6), as the case may be, apply would not be disentitled to the lesser sentence merely because he committed penetrative sexual assault on the child more than once or repeatedly, or that he has impregnated the child, notwithstanding anything contained in clause (l) of section 5 or sub-clause (ii) of clause (j) of section 5, respectively.
(8) The Special Court may get the assistance of experienced psychologists or psycho-social workers or other experts for the purpose of ascertaining any of the matters relating to sub-sections (4), (5) and (6).
(9) The Special Court may pass such orders as are necessary for protecting the interests of the child till the child attains the age of eighteen years.
Similar proviso is recommended to be added to Section 8 of the POCSO Act as well, which deals with sexual assault. Suitable amendment to Section 375/376 of the Indian Penal Code was also proposed in this regard.
Adolescents involved in sexual activity be treated under the JJ Act
The report also suggests that in cases of sexual offences under the POCSO Act against children above 16 years of age, the case may be disposed of under Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2015, if the Juvenile Justice Board or the Special Court is satisfied that special and adequate reasons exist. The reasons include the circumstances under Section 4 and 8 of the POCSO Act, which include tacit approval of the child and the age difference between the two consenting parties not being less than 3 years.
It is recommended that the following proviso and explanation be added to Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2015:
Provided that where a child in conflict with law is found to have committed any sexual offence under the Protection of Children from Sexual Offences Act, 2012 or any other law for the time being in force against a child aged sixteen or above, having regard to the facts and circumstances of the particular case, if the Juvenile Justice Board or the Special Court, as the case may be, is satisfied that there exist special and adequate reasons, to be recorded in writing, it may pass any appropriate dispositional order under this section.
Explanation:- Special and adequate reasons include the circumstances listed in the sub-sections (5) and (6) of Section 4 and sub-sections (3) and (4) of Section 8 of the Protection of Children from Sexual Offences Act, 2012.
As per Section 18, the Juvenile Justice Board can dispose of cases by awarding sentences other than imprisonment such as - admonishment, community service, counselling, release on probation on condition to maintain good conduct.
It may be recalled that last year, the Karnataka High Court had directed the Commission to rethink the age of consent to deal with the issue of teenage relationships. Various other High Courts have also expressed concerns about the criminalisation of adolescent sexual activity.
The report is prepared by the panel led by Justice Rituraj Awasthi (former Karnataka HC CJ), Justice KT Sankaran (former Kerala HC CJ), Professor (Dr) Anand Paliwal and Professor DP Verma.
Click here to read the report