The recommendations of the Law Commission are not binding.
The Law Commission has advised the Centre against lowering the age of consent from 18 to 16 under the Protection of Children from Sexual Offences (POCSO) Act, arguing that doing so will have a negative impact on the fight against child marriage and child trafficking.
The panel has, however, said it considers it necessary to bring about amendments in the Act to "remedy the situation" in cases in which there is tacit approval from children aged between 16 and 18. It said "guided judicial discretion" can be applied in such cases.
In December last year, Chief Justice of India DY Chandrachud had urged parliament to address growing concerns related to the age of consent under the POCSO Act.
'Consent Can Be Manufactured'
In its report to the Law Ministry, the 22nd Law Commission of India has said, “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.”
It said that if there is automatic decriminalisation once the defence of consent is claimed, it must be kept in mind that consent can always be manufactured. The panel pointed to data which reflects that most perpetrators in POCSO cases are people known or close to the child and sometimes even people from the same family. It also said that diluting the law in this manner could mean reducing it to a "paper law".
"Further, the police investigation suffers from a great number of inadequacies and if it is the investigating agencies that get to determine if there was consent or not, then a lot of genuine cases that need to be prosecuted under the POCSO Act may not see trial on account of investigating agencies themselves declaring them to be cases of consensual romantic sexual relationship," the Commission said.
"Such a dilution will provide an easy route to reduce the cases under the POCSO Act or deal with them without getting into the complexity of issues that surround such a trial, thereby reducing the POCSO Act to a 'paper law'," it said.
Need For Amendments
The panel, which is headed by Justice Ritu Raj Awasthi, former chief justice of the Karnataka High Court, said it had considered all the views and suggestions given in connection with cases involving those between the ages of 16 and 18.
“The Commission 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," the report said.
The panel said it was of the considered opinion that such cases do not merit being dealt with the same severity as cases that "were ideally imagined to fall under" the POCSO Act.
“The Commission, therefore, 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 added.
The recommendations of the Law Commission are not binding, and will be studied and taken into consideration by the government, which will take a final call.
'Poses Difficult Questions'
Speaking at an event in December last year, Chief Justice Chandrachud had spoken about judgments of the POCSO courts in 'romantic cases' - involving consenting adolescents engaging in sexual activity.
"As you are no doubt aware, the POCSO Act criminalises all sexual activity for those under the age of 18 regardless of whether consent is factually present between the two minors in a particular case. In my time as a judge, I have observed that this category of cases poses difficult questions for judges across the spectrum. There is growing concern surrounding this issue, which must be considered by the Legislature in light of reliable research by experts in adolescent healthcare," said the CJI.
He had said there is a culture of silence around sexual abuse of children and the state must encourage families to report abuse even where the perpetrator is a family member.