Date : 16/10/2023

Relevance – GS Paper 2 – Social Justice

Keywords – POSCO, Law Commission, Ministry of Women and Child Development, Age of Consent

Context

The Law Commission's 283rd report has suggested that the government should maintain the current age of consent (18) outlined in the Protection of Children from Sexual Offences (POCSO) Act. However, this recommendation seems like a missed chance. There have been calls from the judiciary to reevaluate the criteria for the age of consent in sexual activities. This reevaluation aims to address the significant injustice in cases of statutory rape where there is de facto consent.

Overview of the POCSO Act

The Protection of Children from Sexual Offences (POCSO) Act, enacted in 2012, stands as India's primary legislation addressing child sexual abuse. Administered by the Ministry of Women and Child Development, the law aims to safeguard children from sexual assault, harassment, and pornographic offenses. It also establishes Special Courts for the swift adjudication of such cases. In 2019, amendments were made to intensify penalties, discouraging offenders and promoting a nurturing environment for children.

Key Provisions of the POCSO Act

• Gender- Neutral Definition: The Act broadly defines a child as "any person" below the age of 18, ensuring gender neutrality in its approach.
• Non-Reporting Offense: Individuals in charge of institutions are obligated to report sexual offenses involving subordinates; failure to do so constitutes a crime.
• No Time Limit for Reporting: Victims have the right to report offenses at any time, regardless of how many years have elapsed since the abuse occurred.
• Confidentiality of Victim’s Identity: The Act prohibits the disclosure of the victim's identity in any media, except when authorized by the special courts established under the Act.

Concerns Regarding the POCSO Act

Increased Criminalization of Adolescent Relationships: The Act's elevation of the age of consent from 16 to 18 has led to the criminalization of consensual sexual activities among adolescents. This particularly affects marginalized youth, leading to detrimental consequences.

Surge in Prosecutions: The higher age of consent has led to a surge in prosecutions against individuals below 18. Both POCSO and equivalent provisions in the Indian Penal Code mandate a minimum 10-year sentence for statutory rape, irrespective of whether minors, including those aged 16-18, consented. A notable case, Veekesh Kalawat vs State of MP (2023), challenged this mandatory sentence. In this instance, a minor girl had eloped, married, and had a child, resulting in the incarceration of the family's sole breadwinner, disrupting and devastating the family unit.

While the POCSO Act plays a vital role in protecting children from sexual offenses, concerns persist regarding its impact on adolescent relationships and the potential disruption of families due to mandatory sentences. Balancing the protection of minors with the nuanced realities of adolescent relationships remains a challenge in the implementation of this crucial legislation.

Highlights of the Law Commission’s Report on Age of Consent

• Government's Caution Against Age Reduction: The Law Commission's report emphasized the detrimental impact of lowering the age of consent, citing concerns related to child marriage and trafficking. The Commission discouraged such a reduction, considering its negative consequences.
• Implicit Approval of Adolescents (16-18 Age Group): The report recommended amendments to the POCSO Act for cases where adolescents aged 16 to 18 provide tacit approval, rather than legal consent. Courts were advised to exercise caution in cases involving adolescent love, where criminal intent might be absent, ensuring a balanced approach that prioritizes the minors' best interests.
• Historical Context and Differing Opinions: The report highlighted the historical debate surrounding the age of consent, with opposing viewpoints advocating for either retaining the age at 16 with close-in-age exceptions or raising it to 18, aligning with POCSO's stance. Close-in-age exceptions, allowing a minor to engage with a partner within a limited age difference, were discussed as well.

Critique of the Report

Comparison with International Approaches: The report analyzed age of consent laws in the US, Canada, Japan, Australia, and South Africa, noting their lower age thresholds and close-in-age exceptions. It criticized the limited stakeholder consultations, which excluded crucial inputs from experts such as public health professionals, gynaecologists, psychologists, counselors, and shelter homes.

Flaws in Proposed Mitigation Strategies:

• Limited Impact of Close-in-Age Exception: The close-in-age exception only affects sentencing, not the legality of consensual relationships between minors aged 16 to 18 and partners within a three-year age gap. This approach preserves the criminalization of such relationships and does not offer a defense leading to potential acquittal.
• Ambiguity of 'Tacit Approval': The introduction of 'tacit approval' without a clear definition created confusion. Unlike 'consent,' which is legally defined, this term lacks clarity. Additionally, the report's guidelines for exemptions are vague, encompassing factors related to social and cultural backgrounds, indicating potential biases, especially concerning inter-faith and inter-caste relationships.

Way Forward

Safeguarding Youth: Balancing Protection and Freedom

Ensuring the safety of young individuals from sexual abuse is a universal priority, a mission at the heart of the POCSO Act. Equally vital, however, is shielding them from shame, punishment, and imprisonment when they naturally explore their developing sexuality.

Addressing the Fear of Criminalization

The onset of puberty at 10-11 years triggers biological and emotional changes, including curiosity and exploration. Traditionally, early marriage restricted girls' sexuality within the confines of matrimony, aligning with societal norms. With the growing disapproval of early marriages, abstinence is enforced through fear of legal consequences.

Differential Protection for Under-18s

According to the Convention on the Rights of the Child (CRC), individuals below 18 require specialized protection suited to their evolving capacities. However, data from India reveals that criminalization disproportionately affects the poor and marginalized, especially girls, with severe consequences. Surprisingly, POCSO does not mandate the state to ensure the basic necessities for survivors, making them even more vulnerable.

Embracing Social Security Measures

Rather than criminalization, which exacerbates vulnerabilities, genuine protection comes through social security measures. By providing essential support, society can safeguard young individuals effectively, ensuring their well-being without resorting to punitive measures.

Conclusion

The Law Commission's recommendations on the age of consent overlook a crucial aspect: how to shield the young from sexual abuse while preventing punishment for consensual activities. Now, it falls upon the courts to handle this matter with sensitivity, evaluating each case individually. Continued public discourse is essential, guiding a balanced approach that respects both protection and personal freedom.

Source – Indian Express