POCSO Act: Debate on minimum age of consent as law panel looks to clear stand

The POCSO Act, 2012, criminalises all sexual activities for those under 18.

The Law Commission under the chairmanship of Justice Rituraj Awasthi is all set to clear its stand on the minimum age of consent under the Protection of Children from Sexual Offences (POCSO) Act. The panel will also finalise its recommendations. However, there has been debate on this from the time many courts suggested that the age of consent should be 16 instead of 18.

POCSO Act must stop turning consensual relationships between adolescents into a crime

The law

The POCSO Act, 2012, criminalises all sexual activities for those under 18, even if there is consent between the two minors. The minimum age of consent for sexual intercourse was raised from 16 to 18 years in November 2012. According to the law, any sexual activity with or without the woman's consent when she is below 18 constitutes rape. Anyone below 18 is considered incapable of giving consent.

Problem
Consensual sexual activity among adolescents being criminalised under the law has been cited as a major reason for the suggested changes. The courts across India are flooded with cases in which consenting teenagers are prosecuted for acts that become illegal simply because of their age. The judiciary has repeatedly urged lawmakers to separate the “age of consent” from the 'age of marriage”, according to a report by Indian Express.

The report cited a study conducted in December 2022 by Enfold Proactive Health Trust and UNICEF-India. According to the study, one in every four cases under the POCSO Act in West Bengal, Assam and Maharashtra constituted “romantic cases” where the victim was found to be in a consensual relationship with the accused.

A study by the National Law School of India University, Bengaluru showed that a considerable proportion of adolescent girls between 16 and 18 years of age refused to testify against the accused under the POCSO Act.

For example, in cases where the sex was consensual girl of 17 years and a boy of 19 0r 20 years, the boy is apprehended under the POCSO Act. The punishment may extend for up to 10 years.

According to NDTV, a bench of Justice KM Joseph and Justice BV Nagarathna recently refused to interfere with the order of the Rajasthan High Court cancelling the proceedings against the husband of a minor. A single-judge bench of Justice Bharati Dangre of the Bombay High Court recently made a distinction between the age of consent and age of marriage. The judge emphasised that sexual acts are not confined to marriage and both society and the judicial system must take note of this.