29th September 2023,Mumbai: The Law Commission of India has recently addressed the challenging issue of age of consent within the context of child sex abuse laws. While advocating for a delicate balance between protecting children and recognizing adolescents’ evolving capacities, the Commission has recommended against lowering the age of consent to 16 years. Instead, it proposes a nuanced amendment that allows courts to impose lesser sentences when adolescents engage in consensual sexual relations with females. This article explores the Commission’s recommendations and their implications.
Preserving the Sanctity of Childhood
The Protection of Children from Sexual Offences (Pocso) Act currently mandates a minimum 10-year jail sentence for penetrative sexual assault of minors. The Law Commission firmly asserts that adolescents aged 16 to 18 should be considered children deserving of robust legal protection. In the Commission’s view, tampering with the age of consent or introducing limited exceptions would undermine this vital protection. This stance reflects the Commission’s commitment to safeguarding the rights and well-being of minors.
Navigating a Complex Debate
The Law Commission’s recommendation arises in the midst of an ongoing debate over the age of consent under the Pocso Act. In recent years, several high courts have expressed concerns about consensual relationships between teenagers being criminalized under the stringent provisions of the 2012 law, originally intended to protect children from sexual violence. The Commission’s proactive engagement with this issue demonstrates its responsiveness to evolving societal concerns.
The Catalyst: A Reference from Karnataka High Court
The Commission’s deliberations were triggered by a reference received from the Karnataka High Court in November 2022. The court recommended a reevaluation of the age of consent, citing the increasing number of cases involving minor girls above the age of 16 who were falling in love, eloping, and engaging in consensual sexual relationships. These cases, when reported, led to Pocso charges. This reference served as a catalyst for the Commission’s in-depth examination of the issue.
Addressing Injustice: Insights from Madhya Pradesh High Court
In April of the same year, the Madhya Pradesh High Court also raised concerns about the enforcement of the Pocso Act. It argued that the current form of the Act often resulted in gross injustice in cases of statutory rape, where de facto consent was present. The MP High Court recommended granting discretionary power to Pocso special judges to avoid imposing the statutory minimum sentence when de facto consent was apparent on the part of the girl. This perspective highlighted the need for a more nuanced approach to sentencing.
Introducing Guided Judicial Discretion
In alignment with the MP High Court’s suggestion, the Law Commission has proposed the introduction of “guided judicial discretion” in matters of sentencing in cases involving adolescents engaged in consensual sexual relations with females. This approach seeks to differentiate between cases that demand the full force of Pocso Act penalties and those where a more tempered response is appropriate. By doing so, the Commission aims to ensure that the law strikes a balanced chord, ultimately safeguarding the best interests of the child.
Factors to Consider: Ensuring Fairness in Sentencing
The Commission has not left this proposal open-ended. It has outlined specific factors that Pocso special judges should consider while determining sentences in cases of conviction involving adolescents. These factors are designed to guide judges in making informed decisions that take into account the unique circumstances of each case, ensuring that justice is both served and tempered with empathy.
The Law Commission of India’s recommendations regarding the age of consent within the framework of the Pocso Act reflect a thoughtful and balanced approach. By advocating for the preservation of childhood and the introduction of guided judicial discretion, the Commission seeks to harmonize the protection of minors with the evolving realities of adolescent relationships. In doing so, it endeavors to create a legal landscape that prioritizes fairness, justice, and the best interests of the child.
-by Kashvi Gala