The Law Commission has advised the government not to tinker with the existing age of consent under the POCSO Act and suggested introducing guided judicial discretion in the matter of sentencing in cases involving tacit approval of children in the 16-18 age bracket.
The current age of consent in India is 18 years.
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 panel, headed by former chief justice of the Karnataka High Court Justice Ritu Raj Awasthi, said it had considered all the views and suggestions given in connection with cases involving those between the age of 16 and 18.
The panel said 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.
The law panel report said 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 age of consent under the POCSO Act".
"However, having cautiously considered all the views and suggestions furnished in this regard, the commission said it considers it necessary that certain amendments need to be brought in 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 16 to 18 years," according to the report.
Noting that such cases do not merit to be dealt with the same severity as the cases that were ideally imagined to fall under the POCSO Act, the commission 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 interests of the child," it said.
The law panel said comments were also sought from the Ministry of Women and Child Development on the matter. "However, despite reminders, no response was received," it said.
During the consultations, the panel said, while there was a wide divergence of opinion on how to resolve the issue at hand, there was unanimity of thought when it came to the aspect of the POCSO Act working against the very children it ought to protect.
"The blanket criminalisation of sexual activity amongst and with a child, though intended to safeguard children, is leading to incarceration of young boys and girls who engage in such activities as a consequence of sexual curiosity and need for exploration that may to some extent be normative for an adolescent," the report said.
There is a social cost associated with the present situation, including the negative impact upon the health, both physical and mental, of the children as well as a burden upon the investigating agencies and courts which takes away focus from the cases that are genuine and require immediate consideration, the report said.
The mental trauma and harassment faced by children who, on account of engaging in such a consensual act, come to fall within the ambit of the POCSO Act is certainly an issue of concern, the law panel pointed out.
In the deliberations, the commission said, three possible solutions came up -- blanket reduction of the age of consent to 16 years as was the situation prior to the enactment of the POCSO Act, introducing a limited exception in case of consensual sexual act involving a child above the age of 16 years, and introducing judicial discretion in sentencing in cases of consensual romantic relationship between adolescents or or with an adolescent between the age of 16 to 18 years.
"With respect to the first proposed solution, while giving a blanket exemption to consensual sexual acts by persons above 16 years may seem like a panacea for the situation we are faced with, however, the same will lead to many unintended consequences of much severe nature," it said.
Reducing the age of consent will have a direct and negative bearing on the fight against child marriage and child trafficking, the battles against which have been hard-fought and are still ongoing, it said.
With respect to the second proposed solution, carving out a limited exception for sexual relations with a child above 16 years is equally concerning and prone to misuse, the panel said.
"The consent of a child is no consent and reading the same would be deeply problematic. All children deserve the protection of the special law enacted for this very purpose and diluting the age of consent will deprive a significant portion of the child population, especially young girls aged 16 to 18 years, of the protection and expose them to unchecked exploitation," it said.
The panel report said increasing incidents of grooming and cyber-crimes such as sextortion are classic examples of how children in this vulnerable age group can be trapped and exploited.
The panel said the third solution of introducing judicial discretion in sentencing seems to strike a delicate balance to address the issue at hand and at the same time protecting children from sexual exploitation.