Age of Consent Under POCSO Act

The 22nd Law Commission, headed by Justice (Retired) Ritu Raj Awasthi, submitted its Report on ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012’ (POCSO ACT) submitted to the Ministry of Law & Justice.

Possible Solutions Recommended by the Law Commission under POCSO Act:

• A blanket reduction of the age of consent to 16 years as was the situation prior to enactment of the POCSO Act;
• Introduction of a limited exception in case of consensual sexual act involving a child above the age of 16 years;
• Introduction of judicial discretion in sentencing in cases of consensual romantic relationship between adolescents or with an adolescent between the age of l6 to l8 years.

Key Highlights of the Recent Report related to POCSO Act

• Tacit approval: It has called for certain amendments to 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 I6 to l8 years.
• Guided Judicial Discretion: The Law Panel advises introduction of “guided judicial discretion” while sentencing in cases that involve the tacit approval of children in the 16 to 18 years age bracket.
• Law Commission seems it is not advisable to tinker with the existing age of consent under the POCSO Act 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.

• Role of Special Court:  amendments be made to Sections 4 (punishment for penetrative sexual assault) and Section 8 (sexual assault) of the POCSO Act, allowing the Special Court to award lesser sentence in cases where the child is of the age 16 or above, subject to a checklist.
• Juvenile Justice Act: The Law Commission suggested making changes in Section 18 of the Juvenile Justice Act dealing with ‘orders regarding children found to be in conflict with law’ and corresponding changes in Sections 375 and 376 of IPC.

Other Recommendations

• Reporting crime in real time: Law Commission recommended amending Section 154 of the Criminal Procedure Code, 1973 in order to roll out the registration of e-FIRs in a phased manner, beginning with offences that attract a jail term of up to three years.’

Criticism Against the Recommendations related to POCSO Act:

• Reducing the age of consent to 16 years will lead to many unintended consequences of much severe nature thereby reducing the POCSO Act to a ‘paper law’.
• Effectiveness of Act: POCSO Act is an important tool to combat child trafficking and child prostitution and altering the definition of ‘child’ under the Act would hamper its effectiveness.
• Exploitation of the girl child: The Report argues that reducing the age of consent could lead to rise in child marriages and further. Any decrease in the age of consent would negatively impact the age-old fight against child marriage by providing parents an opportunity to marry off minor girls.
• The Prohibition of Child Marriage Act, 2006 (PCMA) is a weak law as it is silent on age of consent and sexual relations with a minor, with the POCSO Act filling this void.

• Mental trauma and harassment children face if a consensual act falls under the ambit of the POCSO Act, and it stresses on the possible effect on the mental and physical growth of children facing exploitation, trafficking, prostitution etc.
• Socio-Economic Factor: Lowering the age of consent and allowing children to enter into such relationships will trap children in the vicious cycle of multi-dimensional and multi-generational poverty.
• Loopholes in the legal system: Courts have failed to Analyse why victims become uncooperative or even encouraged victims to marry their abusers.
• All of the above concerns are further compounded by the increased vulnerability and danger that children face in a digital world.

Practice Questions for Prelims

Consider the following statements regarding POCSO Act:
1. It is aimed to protect children from sexual harassment at places of work only. 
2. Recently Law Commission of India reported to reduce the age of consent to 16 years as compared to 18 years currently.
3. Law commission of India reported the introduction of judicial discretion in sentencing in cases of consensual romantic relationship between adolescents or with an adolescent between the age of 16 to 18 years.

How many of the statements given above is / are correct :
a) Only 1 statements is correct
b) Only 2 statements are correct
c) All 3 statements are correct
d) None of the statements are correct

Ans. a)

Mains Practice Question

Highlighting the critical provisions of the Protection of Children From Sexual Offences Act (POCSO) analyze the adequacy of this legislation for the protection and safety of children. 

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