Law Commission Recommends Maintaining Age of Consent in POCSO Act, Advocates for Guided Judicial Discretion

The Law Commission Chairman Justice (Retd) Ritu Raj Awasthi, has submitted its recommendations to the Law Ministry regarding the age of consent under the Protection of Children from Sexual Offences (POCSO) Act.

The Commission has advised against altering the current age of consent, which stands at 18 years, and instead proposed the introduction of guided judicial discretion in sentencing for cases involving tacit approval of children in the 16-18 age group.

The panel’s rationale behind maintaining the age of consent at 18 is rooted in concerns related to child marriage and child trafficking. They stated that lowering the age of consent would negatively impact efforts to combat these issues. Additionally, the Commission urged the courts to exercise caution in cases where adolescent relationships may be characterized by uncontrollable emotions and the absence of criminal intent.

The panel’s recommendation comes amidst an ongoing debate over the age of consent under the POCSO Act. Several high courts in recent years have expressed concerns that consensual relationships among teenagers were being criminalized under the stringent 2012 law, originally intended to protect children from sexual violence.

Justice (Retd) Ritu Raj Awasthi, in a letter addressed to Law Minister Arjun Singh Meghwal, highlighted the Commission’s initiative to examine relevant provisions following a reference from the Karnataka high court in November 2022. The Karnataka high court recommended a reconsideration of the age of consent due to the increasing number of cases involving minor girls above the age of 16 who are engaging in relationships, eloping, and having sexual intercourse, resulting in POCSO cases.

The Commission also received a letter from the Madhya Pradesh high court in April, asserting that the enforcement of the POCSO Act in its current form led to injustices in cases of statutory rape where de facto consent was evident. The Madhya Pradesh high court proposed granting discretionary power to the POCSO special judge to not impose the statutory minimum sentence in cases where de facto consent was apparent on the part of the girl.

In line with this suggestion, the Commission concluded that such cases should not be treated with the same severity as cases initially intended to fall under the POCSO Act. The Commission recommended the introduction of “guided judicial discretion” in sentencing for such cases, with the special judge considering specific factors while ruling on convictions in such instances. This approach, the Commission argued, would strike a balance and safeguard the best interests of the child.