– Vedant Choudhary
The Law Commission of India in its 283rd report, titled, ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012’ has recommended against amending the age of consent under the POCSO Act. This negative recommendation comes in light of growing cases of romantic relationships between minors, where de facto consent is present, but consent required under the law is absent. The report recommends introducing certain amendments to the POCSO Act and the Juvenile Justice (Care and Protection of Children) Act, 2015. I argue in this piece that the recommendations of the Law Commission do not address the problems that have arisen. Further, I suggest alternate amendments to the POCSO Act, which directly address the rising problems.
The Law Commission’s Recommendations
The present report was taken up after references were made to the Law Commission in this regard by the Karnataka and Madhya Pradesh High Courts. Both courts noted that there are rising number of cases of a minor girl above the age of 16 falling in love with a boy, eloping, and having sexual intercourse thus attracting the provisions of the POCSO Act. The relatives of the minor girl, typically the parents lodge a complaint against the boy, pursuant to which a charge sheet is laid, resulting in criminal prosecution of the boy. The courts note that although de facto consent of the minor girl is present, the law incapacitates the minor from giving sexual consent. The POCSO Act criminalises all sexual intercourse under the age of 18, for which the minimum punishment is 10 years.
The courts in their reference have suggested altering the age of consent under the POCSO Act. However, the Commission has rejected this recommendation. The Commission reasons in its report that, reducing the age of consent would provide an easier route for perpetrators of child abuse, child trafficking, child marriage, and child prostitution to escape prosecution, by allowing for the defence of consent of the child. Instead, the Commission recommends certain amendments to sections 4 and 8 of the POCSO Act and section 18 of the Juvenile Justice Act. These recommended amendments seek to increase judicial discretion in the sentencing of crimes under the POCSO Act in cases where the child is above the age of sixteen.
Why are the Recommendations Problematic?
The recommended amendments are problematic on several counts. First, assuming the recommendations are implemented, sexual intercourse between the minor girl and the boy would still be deemed an offence. The only change the recommendations seek to bring is to reduce the punishment for the offence (at the discretion of the judge). That is, there would still be prosecution and sentencing, with the only difference being that the sentence may be reduced below the minimum term of ten years under section 4 and section 8. The fundamental problem as noted by the Karnataka and the Madhya Pradesh High Court is not that of punishment, but rather that of unnecessary prosecution. The prosecution leads to a plethora of problems for the minor girl and boy. These include misunderstandings between the couple and severe financial losses; further, the family of the minor girl and boy face severe mental trauma and fear of being ostracized from their community. Moreover, often the complaints under the POCSO Act are lodged in the heat of the moment, and frequently, family members themselves turn hostile to the case of the prosecution.
Second, the recommended amendments provide that while exercising judicial discretion, the court must take into account certain facts and circumstances from the case. Some of these circumstances are material to determining the intimacy and relationship, and de facto consent of the minor in the case. For example, the recommendations mandate the judge to ensure that the child has not been used for pornography, or any other immoral/illegal activity; the relationship between the child and the accused must not indicate child trafficking; the accused must not have manipulated or indoctrinated the child etc. However, there are certain conditions which are arbitrary and unnecessary. For example, the judge is also required to ensure that the accused has no criminal antecedents. Why must the court determine criminal antecedent to determine the existence of consent? Further, the recommendations provide that the judge may also consider if the parents of the accused and the minor child approve of the relationship. Once again, this question is immaterial to the case. The aim of the case is sexual consent, not that of marriage or approval of a relationship. The court may also consider if the couple are leading a happy married life. This too is unrelated to the question in the case. Financial problems between the couple may bring in unhappiness, but this should not be a metric to determine the guilt of the accused under the POCSO Act.
Suggestions and Concluding Remarks
While the recommendations provide greater discretion to the special judge with respect to sentencing for the crime, this hardly resolves the problem flagged by the High Courts, i.e., the prosecution of the boy. The root cause of unnecessary prosecution under the POCSO Act can be directly traced to the ease of lodging a complaint under the Act. Section 19 of the POCSO Act empowers ‘any person’ having an apprehension that a crime under the Act has been committed to lodge a complaint. This Section is of great importance given that minors are often incapacitated from lodging complaints, due to the fear of repercussions, lack of knowledge, etc.
Therefore, to prevent unnecessary prosecution it is necessary to either carve out an exception for children above the age of 16, or an exception in cases where the facts indicate a romantic relationship, or both. There are various methods in which this may be done. For example, the special judge under the POCSO Act can be empowered to quash the complaint where he is satisfied that the minor either had de facto consent, or a romantic relationship exists. In order to determine the same, the judge may scrutinise the facts and circumstances of the case, for example, the relationship between the couple, the behaviour of the accused towards the prosecutrix etc. Another measure that could be implemented is to summon the prosecutrix to verify the complaint lodged. Alternatively, an amendment could be introduced requiring the knowledge and consent of the minor in filing the complaint, in the absence of which, the judge may quash the complaint.
In Veekesh Kalawat, the Madhya Pradesh High Court noted that the oppressive application of the POCSO Act is detrimental to marginalised sections of society. The POCSO Act holds the potential to be misused against communities where personal laws or customs permit marriage under the age of 18. For example, Muslim Personal Law permits the marriage of girls above the age of 15. This is particularly important in light of the Karnataka High Court’s judgement in Aleem Pasha, where it was held that POCSO shall have an overriding effect over Muslim Personal Law. Thus, even a lawful marriage under Muslim Personal Law can be the subject of a complaint under the POCSO Act. An appropriate amendment to section 19 of the POCSO can pre-empt such misuse too.
The blog has been authored by Vedant Choudhary. The author studies law at Symbiosis Law School, Pune.
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