The Law Commission received a reference from the Hon’ble High Court of Karnataka (Dharwad Bench), vide letter dated 9th November, 2022, asking the Commission to rethink on the age criteria for 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 Act”) and/or the Indian Penal Code, 1860. The Commission is also in receipt of a reference from the Hon’ble High Court of Madhya Pradesh (Gwalior Bench), vide letter dated 19th April, 2023, wherein the Court has drawn the Commission’s attention on how the enforcement of the POCSO Act, in its present form, causes gross injustice in cases of statutory rape where de facto consent is present. The Court further 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 is apparent on part of the girl child or where such a relationship has culminated in marriage, with or without children.
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.
However, having cautiously considered all the views and suggestions furnished in this regard, 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.
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.
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.
Accordingly, Report No. 283 titled “Age of Consent under the Protection of Children from Sexual Offences Act, 2012” was submitted to the Ministry of Law & Justice, Department of Legal Affairs, on 27.09.2023.
