The 22nd Law Commission, chaired by Justice (retd) Ritu Raj Awasthi, has held that it is not advisable to tinker with the existing age of consent under the POCSO Act.
On different references made by the High Courts of Karnataka and Madhya Pradesh, respectively, in 2023, the panel was examining the age criteria of 18 years for consent.
The courts had asked the Commission to rethink on age of consent taking into consideration the rising number of cases relating to minor girls above the age of 16 years falling in love, eloping and having sexual intercourse with the boy, thereby attracting the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and the Indian Penal Code, 1860.
The court had further asked the Commission to suggest amendment to the POCSO Act, vesting discretionary power in the Special Judge to not impose the statutory minimum sentence in cases where de facto consent is apparent on part of the girl child or where such a relationship has culminated in marriage, with or without children.
The Commission, after having extensive consultation with the National Commission for Protection of Child Rights (NCPCR), former judges, lawyers, child rights activists, NGOs and academicians, said 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 l8 years.
“This is so because in our considered opinion, 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,” it said, adding that guided judicial discretion should be introduced in the matter of sentencing in such cases.
The law panel said that such romantic cases involving adolescents do not merit to be dealt with the same severity as the cases that were ideally imagined to fall under the POCSO Act.
"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.
During preparation of the report, the law panel had also solicited responses from all the High Courts and the National Crime Records Bureau (NCRB) for relevant data.