The Law Commission of India, headed by Chairman Justice (Retd) Ritu Raj Awasthi, has advised against lowering the age of consent under the Protection of Children from Sexual Offences (POCSO) Act, retaining it at 18 years.
Their decision is primarily based on concerns about child marriage and child trafficking, suggesting that reducing the age would hamper efforts to address these problems. The Commission has instead proposed introducing “guided judicial discretion” for sentencing in cases where children between 16-18 years have given tacit approval. This suggestion stems from concerns that consensual relationships among teenagers could be unjustly penalised under the 2012 law.
Justice (Retd) Awasthi, in a letter to Law Minister Arjun Singh Meghwal, shed light on the Commission’s review of relevant provisions after a recommendation from the Karnataka high court in November 2022. The Karnataka court suggested revisiting the age of consent, noting an uptick in cases involving minor girls above 16 engaged in consensual relationships, resulting in charges under the POCSO Act.
A similar sentiment was expressed in a letter from the Madhya Pradesh high court in April. The court asserted that enforcing the POCSO Act in its current form occasionally resulted in injustices, particularly in cases of statutory rape with evident de facto consent. They proposed granting the special judge under the POCSO Act discretionary powers to avoid imposing the statutory minimum sentence in such situations.
Concurring with this stance, the Commission believes that cases with de facto consent shouldn’t be equated with severe violations initially covered under the POCSO Act. By introducing guided judicial discretion, they aim to protect the best interests of the child while ensuring justice is served adequately.