The Law Commission has advised the government not to tinker with the existing age of consent under the POCSO Act while also suggesting introducing guided judicial discretion in the matter of sentencing in cases involving tacit approval of children in the 16-18 age bracket.
The Law Commission has submitted its report on the age of consent under the Protection of Children from Sexual Offences (POCSO) Act to the Law Ministry in which it has suggested that amendments are needed in the legislation to remedy the situation in cases involving tacit approval, though not consent in law, on the part of children aged between 16 and 18. The current age of consent in India is 18.
The panel said that reducing the age of consent will have direct and negative bearing on the fight against child marriage and child trafficking and also advised courts to tread with caution even in cases where it is observed that adolescent love cannot be controlled and criminal intention may be missing.
In December last year, Chief Justice of India DY Chandrachud had urged the Parliament to address concerns related to the age of consent under the POCSO Act.
“Law Commission in its report to the Ministry of Law and Justice suggested that adolescents in the age bracket of 16 to 18 years still remain children who ought to enjoy higher protection of law and the age of consent cannot be disturbed either by reducing it or introducing a limited exception,” the Law Commission said.
“It further states that even though close-in-age exemptions have been largely considered inadequate to deal with the present situation, the Commission considers that the age difference between the victim-child and the accused in such cases ought to be a relevant factor that is to be carefully considered by the court,” it added.
If the age difference between the victim child and the accused is less than three years, the Commission is of the considered view that the introduction of judicial discretion in the matter of sentencing can help alleviate the plight of those truly aggrieved, the Commission said.
“A child can be prosecuted as an adult in cases of heinous offences under the Juvenile Justice (Care and Protection of Children) Act. Offences defined under Sections 3 and 7 of the POCSO Act are heinous in nature and there is always the danger of the child being tried as an adult even though the sexual act had been consensual. Thus, changes are also required to be brought within the Juvenile Justice Act in order to ensure that in such cases of romantic relationships, the child is not tried as an adult and gets the benefit of a trial in accordance with the Juvenile Justice Act,” the Law Commission suggested.
(With inputs from agencies)