There are two questions that underlie the Protection of Children from Sexual Offences Act, 2012. What do Indian society and law understand by protection? And, more searchingly, what is the attitude towards sex enshrined in the Pocso Act? Both questions converged in the arguments around the age of consent under this law. That age is 18, and the Law Commission reviewed it at the Chief Justice of India’s behest after certain high courts expressed their discomfort at the criminalising of older teenagers in consensual relationships, which were natural at a time when romantic feelings awaken and sexual exploration takes place. The severity of the Pocso Act occasionally resulted in lifelong damage for young people; the law became a weapon in the hands of authoritarian families instead of protecting their children. The Law Commission, after discussions with experts and scrutiny of the data from courts and the police, decided, however, that the age of consent should not be reduced to 16. The argument was that any reduction in the age of consent would facilitate crimes such as child marriage and child trafficking. Besides, consent can be manufactured in the case of girls of 16, or they can easily fall prey to sex-based cybercrimes.
Contemporary realities make these dangers inescapable. So the Law Commission left the onus of ‘balancing’ the law on the judges. It suggested that amendments be introduced to the Pocso Act and guided judicial discretion be used in cases of tacit approval between 16- to 18-year-olds, although that cannot be consent in law. Sentencing should not be severe in cases lacking criminal intention and those demonstrating teenagers’ uncontrolled romantic feelings. This seems to be the wisest option, although it leaves everything to the judge’s perception. The Pocso Act would still enable adults to bring older teenagers below 18 and men as young as 19 or 20 to court before ‘tacit’ mutual approval is proven. The experience can have a deeply negative effect on attitudes to sex and love in impressionable minds. In a country where young girls are exploited, violated or sold off, the commission offered the most accessible solution. But future amendments to the law should consider the need to create a healthy attitude to love and sex among young people alongside protection. That would be the best corrective to sexual violence.
