Law Commission suggests maintaining the age of consent at 18 years under the POCSO Act

New Delhi: Turning down demands for reducing the age of consent from 18 years to 16 years under the POCSO Act, the Law Commission has recommended to the Government that it should be retained at 18 years in view of problems of child abuse and child trafficking for prostitution.

“After a careful review of existing child protection laws, various judgments 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,” said the Commission whose recommendations are not binding on the Government.

The Law Commission – which advises the Government on legal issues — said, “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 suggested amendments to Sections 4 and 8 of the POCSO Act (Penetrative sexual assault and sexual assault); Section 18 of the Juvenile Justice (Care and Protection Act, 2015 (Children in conflict with law) and Sections 375 and 376 of the IPC (Rape) to give discretion to courts while awarding punishment to convicts in cases wherein “there is tacit approval in fact, though not consent in law on part of the child aged between I6 to l8 years.”

Section 4 of POCSO prescribes a minimum sentence of 10 years for penetrative sexual assault if the victim is aged between 16 and 18 years and a minimum sentence of 20 years in cases where the victim is below 16 years.

Before awarding lesser punishment than what is prescribed under POCSO Act, the court would also consider that there is no change in the social or cultural background of the child, indicating an element of manipulation or indoctrination, it said.

The Commission also recommended spreading awareness regarding child sexual abuse, sexual and reproductive health as well as provisions of the POCSO Act, saying, information about sex and the ill-effects of engaging in it at a young age can better equip children to make healthier and safer choices in life.

“In order to ensure that children get the best environment to grow and flourish, it is necessary to increase awareness regarding child sexual abuse and the varied forms it can take. Further, as a part of their school curriculum, children can be made aware of their body and various physiological and psychological changes they experience as a part of growing up.

The issue was referred to the Law Commission by the Karnataka High Court and the Madhya Pradesh High Court in November 2022 and April 2023, respectively.

The MP High Court had requested 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 was apparent on part of the girl child or where such a relationship culminated in marriage, with or without children.