The Law Commission’s recommendation not to tinker with the age of consent — currently 18 years — is a welcome development
Published Date – 11:44 PM, Mon – 2 October 23
The Law Commission’s recommendation not to tinker with the age of consent — currently 18 years — is a welcome development
The anomalies in the existing laws pertaining to the criminality of rape have often led to the exploitation of minor girls in India. Human traffickers generally use the marriage status of minors as an alibi to push them into flesh trade. The ambiguity in the POCSO (Protection of Children from Sexual Offences) Act is also posing challenges to the judiciary. The latest recommendation by the Law Commission not to tinker with the age of consent — currently 18 years — is a welcome development. Any attempt to reduce the age of consent would have a detrimental effect on combating child marriage and trafficking. Striking a balance between protecting children and respecting the autonomy of young adults is a complex matter. The courts need to tread with caution even in cases related to adolescent love. The Law Commission has rightly advised the introduction of “guided judicial discretion” while sentencing in cases that involve the tacit approval of children in the 16-to-18 years age bracket. Certain amendments would be required to the stringent POCSO Act to remedy the situation in cases involving tacit approval, though not consent under law, on the part of children aged between the said age bracket. The Commission, led by former Karnataka High Court Chief Justice Ritu Raj Awasthi, has said that such cases, involving consensual acts by adolescents without any criminal intent, should not be treated with the same severity under POCSO.
The reference to the age of consent was made to the Law Commission in November last year by the Karnataka High Court, which asked it to rethink the age criteria for consent, taking into consideration the rising number of cases relating to minor girls above the age of 16 years falling in love and eloping. Taking note of such judicial observations, the Commission opined that cases where there is tacit approval do not merit the same severity as “cases that were ideally imagined to fall under the POCSO Act”. The purpose of the POCSO Act was to safeguard children from sexual exploitation, not to criminalise consensual relationships between young adults. In this context, the law panel’s suggestion needs serious consideration. It has called for introducing ‘guided judicial discretion’ for sentencing in cases involving tacit approval of children in the 16-18 age bracket. The government would do well to initiate the process of making legislative changes. Research has shown that a significant chunk of cases under POCSO are filed by families and against consensual relationships that parents don’t approve of. To prevent this subversion of the 2012 law, the Commission’s suggested measure will need to be bolstered by adequate focus on implementation and a shift in both prosecutorial and judicial mindsets. The Commission’s stance against lowering the age of consent is rooted in concerns that it could inadvertently facilitate coercive practices, child marriages, marital rape and trafficking.
