An element of worry in cases filed under the Protection of Children from Sexual Offences Act, 2012 concerns the age of consent. In recent years, various high courts have underscored a surge in the number of cases being filed under POCSO concerning teenagers in the 16-18 age group involved in romantic relationships. The predicament before the courts is that although teenagers engage in intimacy consensually, the courts are bound to punish the male counterpart with a minimum sentence of 10 years. At present, the age of consent has been fixed at 18 years. Thus, anyone who engages in sexual activities with a minor girl is guilty of committing statutory rape despite the girl having consented to such an act.
In November 2022, the Karnataka High Court enjoined the Law Commission to look into the age criteria for consent. The Law Commission came up with its 283rd report but opined against reducing the age of consent, fearing that doing so would exacerbate crimes such as child trafficking and prostitution. It was of the opinion that introducing judicial discretion in sentencing would be the appropriate measure for securing the twin goals of protection of minors from sexual offences and reducing the severity of punishment.
The recommendations of the Law Commission are problematic for two reasons. First, penal provisions with stringent punishments are already in place in the Bharatiya Nyaya Sanhita to deal with trafficking, prostitution and so on, including specific provisions prescribing harsher punishments for offences against minors. How then would reducing the age of consent under POCSO aggravate the crisis? Second, judicial discretion in sentencing does too little for those implicated in these cases. The nature of the criminal justice system is such that the process ends up becoming the punishment for an undertrial prisoner. Additionally, even a lighter punishment does not cast away the stigma of moral turpitude that smears the personhood of a juvenile for life. Furthermore, the right to dignity applies to minors and adults. It entails recognising and protecting the inherent value and worth of every individual. The Supreme Court has emphatically declared privacy to be a core facet of the right to dignity in K.S. Puttaswamy vs Union of India. Taking away the rights of teenagers who have cognitive faculties is a direct assault on their right to privacy.
Two changes must be implemented to remedy the situation. First, the age of consent must be lowered to 16 (as it stood before the enactment of POCSO) as most of these cases pertain to adolescents aged 16-18 years; second, courts must be conferred with categorical discretion to exonerate the accused if they believe that the minor has developed adequate cognitive abilities to make rational decisions for herself. Bringing down the age of consent, ideally with retrospective effect, would provide much-needed relief to the courts that are currently overburdened with such matters.
Since the determination of the age of consent lies completely within the legislative domain, Parliament must take stock of the issue and re-examine it in light of the observations made by the higher judiciary. The reappraisal needs to be grounded on evidence from the workings of the current legal framework. Landmark judgments of the Supreme Court dealing with the right to dignity and privacy must be resorted to as guidelines in arriving at conclusions coherent with the principles of constitutionalism which ensure a minimum degree of autonomy for all.
