'Law commission's decision welcome but POCSO needs to be amended for consensual relationships between young adults'

New Delhi, Sep 29 (PTI) Lawyers and child rights activists have welcomed the Law Commission's recommendation not to tinker with the age of consent, but stressed the need for specific amendments to the POCSO Act concerning consensual relationships involving young adults aged 16 to 18 years.
    The 22nd Law Commission has advised the government not to tinker with the existing age of consent under the Protection of Children from Sexual Offences (POCSO) Act and suggested introducing guided judicial discretion in the matter of sentencing in cases involving tacit approval of children in the 16-18 age bracket.
    The POCSO Act defines a child as a person aged below 18 years.
    Welcoming the recommendations given by a Law Commission report against lowering the age of consent from 18 to 16 years under the Act, Puja Marwaha, CEO, CRY (Child Rights and You), said it is actually a well-thought out step from the perspective of child rights.
    "Over the past few years, many child rights organisations kept on saying that the stringent framework of the POCSO Act may criminalise all consensual sexual activities for adolescents between the age of 16 to 18 years and the need was to bring in a more balanced and nuanced view in this regard," she said.
    Over the years, the POCSO Act, which seeks to protect children from sexual assault, sexual harassment and pornography, has often come in conflict with the role of consent in determining the nature of relationships between adolescents.
    According to section 6 of the Act, "Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person, and shall also be liable to fine, or with death."
    The Law Commission, in the report submitted to the law ministry, has suggested that there should be some amendments in the existing legislation, particularly to "remedy the situation" in cases in which there is tacit approval from children aged between 16 and 18 years.
    "We do believe that this will make the law more balanced and safeguard the best interests of adolescents," Marwaha said.
    She also cautioned that bringing down the age bar may have negative implications on the fight against underage marriage and child trafficking.
    "The Law Commission's September 2023 report maintains consistency in child protection by aligning various child protection provisions found in different laws, such as the Child Marriage Act and the Indian Penal Code, where the age of consent is set at 18 years. This ensures a certain clarity for the stakeholders and service providers, including government administration and police," she added.
    Bhuwan Ribhu, child rights activist and lawyer, said reducing the age of consent would have a detrimental effect on all cases of trafficking and other abuse of girls aged between 14 and 18 years.
    "It is heartening to see that the Law Commission has taken a holistic view on child protection and settled the issue of age of consent once and for all," he said.
    Bharti Ali, co-founder and executive director of the HAQ Centre for Child Rights, raised critical questions about the existing laws.
    She challenged the constitutional basis for treating consensual sexual acts differently for minors, terming them "status offences".
    "What is the constitutional basis to ignore the agency of minors and bypass their decision against taking recourse in law for a status offence? Non-exploitative consent for sexual intimacy is not a crime for adults, but for minors, it is and hence, it becomes a status offence. The UN Committee on the Rights of the Child has time and again recommended to India that laws be changed to do away with status offences," Ali told PTI.
    Prominent human rights lawyer Shilpi Jain, however, expressed opposing views, arguing that the proposed changes could better reflect the evolving social dynamics.
    She contended that in today's interconnected world, adolescents mature earlier due to increased awareness and exposure, particularly through the internet. Jain emphasised the need for distinguishing between premarital sex and early marriage, suggesting that the age of consent should be lowered to 16 years.

(This story has not been edited by THE WEEK and is auto-generated from PTI)