New Delhi: The Law Commission of India has advised against reducing the age of consent under the Protection of Children from Sexual Offences Act (POCSO) from 18 to 16 years or make an exception for cases where a minor marries an adult man out of his or her own choice.
The 22nd Law Commission of India’s 283rd report — called ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012′ and made public Friday — cites issues like child abuse and trafficking to recommend against bringing down the age of consent.
Instead, it proposes changes in the special law that would give discretion to the judiciary to hand out a lower sentence than the minimum jail term prescribed in it for penetrative sexual assault and sexual assault in case the trial court concludes that there was “tacit approval” of the minor child aged between 16 and 18 years to the relationship.
Headed by former Karnataka High Court Chief Justice Rituraj Awasthi, the commission also outlines the circumstances that would be taken into consideration while sentencing the accused in such instances.
The report, submitted to Union Law Minister Arjun Ram Meghwal, is in response to the references received from Karnataka and Madhya Pradesh high courts. Both HCs had drawn the commission’s attention to the enforcement of POCSO and how, in its present form, it causes gross injustice in cases of statutory rape, where de-facto consent is present. While Karnataka HC made its reference in November last year, the MP HC did so in March this year.
The MP HC had specifically asked the commission to weigh in on the possibility of suggesting a modification in the law to allow the not imposing the statutory minimum jail term set out in the law in POCSO cases where consent is apparent on the girl’s part or where such a relationship has culminated in marriage, with or without children.
The report comes at a time when various courts across the country have delivered conflicting rulings on marriage and sexual relationships involving minors and personal laws.
In its report, the law commission further suggested amendments to the Juvenile Justice (Care and Protection of Children) Act, 2015, so that in cases of consensual teenage relationships, the accused can be tried under the special law, which allows for “much liberal and wider discretion in punishment and sentencing” of children in conflict with law.
The report also recommends a corresponding amendment to Section 375 of the Indian Penal Code (IPC) — the provision dealing with rape — so that a lenient view can be taken to the extent of giving punishment in cases of adolescent romantic relationships. Currently, Section 375 has an exception that protects a husband from facing rape prosecution.
The original law defined a wife as a person who is over 15 years of age. However, after the Supreme Court’s 2017 ruling in Independent Thought v. Union of India, 15 years was changed to 18, meaning any man having sex with a woman below 18 years, even if she is married to him, would amount to rape.
Significantly, the law commission’s report is not binding but has persuasive value.
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‘Any element of consent can be misused’
In his letter to the law minister, Justice Awasthi says that “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 af of consent under the POCSO Act”. The letter is annexed to the report.
However, it says that after having “cautiously considered all the views and suggestions furnished in this regard”, it believes certain amendments are necessary in the POCSO Act “to remedy the situation in cases wherein there is tacit approval in fact, though not consent in law, on the part of the child aged between 16 to 18 years”.
The commission, according to the letter, recommends reading down the law in such cases because it felt that they do not warrant dealing 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 interest of the child,” the law commission report said.
The panel, however, says that the “very real possibility of young girls being easily seduced in love traps and then sold off in trafficking” should not be ignored.
“Any element of consent can be misused and may lead to children being at the mercy of adult abusers, thereby enabling prostitution and exploitation of children,” the report said.
Advocating the need to increase more awareness amongst teenagers on POCSO, the report further added: “While teenagers today may seem to mature physically at a much younger age as compared to their parents and may often exhibit behaviour similar to that of an adult, it does not imply that they understand the true and full implications of their behaviours and actions”.
The dangers of introducing any element of consent can be that the child may be induced to have sexual intercourse and later when the child realises that he/she was induced and hence wants to proceed with a case, the same may be dismissed saying that the sexual intercourse was voluntary, it further says.
The report adds: “Further, a child may engage in sexual activity out of his/her own volition initially, but if he/she subsequently objects to it and the accused continues to have sexual activity with him/her, on a complaint being made by the child. The accused can always plead that the act was voluntary and get away with it because the law itself would provide them that avenue”.
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Reduced sentence, leniency under certain circumstances — changes suggested
Among the key changes the commission recommends are amendments to Sections 4 and 8 of POCSO. While Section 4 deals with punishment for penetrative sexual assault, Section 8 talks about punishment for sexual assault.
Section 4 of POCSO has three sub-sections. Under Section (4) (1), the jail term for penetrative sexual assault ranges from 10 years to life imprisonment. Section (4) (2) makes the punishment stringent in case the victim is less than 16 years old. The minimum punishment under this clause is 20 years, while the maximum is life. Section 4 (3) says the fine imposed will be just, reasonable, and paid to the victim to meet medical expenses and rehabilitation.
According to the law commission report, six more sub-sections should be added to Section 4 that would allow the trial court to use its discretionary power. The new sections would let the trial court impose a sentence lesser than the minimum punishment given in sub-section 1, which is 10 years, in case it is satisfied that the relationship between the accused and child who is aged between 16 and 18 years has been “intimate”.
In order to safeguard the interest of the minor child, the commission has specified the facts and circumstances that the special court will take into account to give a less severe punishment. These include the age gap between the minor child and the accused, which should not be more than three years, according to the law commission.
Leniency in punishment will be shown if there is no effort on the accused’s part to indoctrinate or manipulate the victim, if the accused is not in a dominating position to intimidate the child’s parents or relatives, there’s no undue influence or fraud on the child, and the accused did not use the child for pornographic purposes or for any illegal or immoral activity, amongst others.
Facts such as whether the relationship ended in the couple’s marriage, the birth of a child or “any other similar convincing circumstances for exercising the discretion by the special court” will also be considered at the time of deciding the sentence, the report said.
Another suggested sub-section says that the special court may get the assistance of experienced psychologists, psycho-social workers, or other experts while determining the punishment.
Similar amendments have been advised for Section 8, under which someone found guilty of sexual assault can be sent to jail for five years, but not less than three.
With regard to changes to the Juvenile Justice Act, the commission has proposed adding a new proviso and explanation to Section 18 of the law, which underlines the nature of orders that can be given by the Juvenile Justice Board (JJB) in a case.
According to the Commission’s suggestion, the JJB can hear a case of a minor child who is found to have committed any sexual offence under POCSO or any other law if it or the trial court hearing the case finds that there was “tacit approval” of the alleged victim to the relationship. The circumstances that will help the board or special court to determine this would be similar to the ones that the Commission has floated for Sections 4 and 8 of POCSO.
Trial of a minor under the JJA would mean that the child would he/she would not be treated as an adult for the purposes of sentencing and a liberal approach would be adopted for the same.
(Edited by Uttara Ramaswamy)
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