'Can Increase Child Marriages': Why Law Commission Has Advised Against Reducing Age Of Sexual Consent To 16 Years

The Law Commission of India in its 283rd report on the ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012’ had ruled out reducing the age of consent to 16 years under the POCSO Act.

“After a careful review of existing child protection laws, various judgements and considering the maladies of child abuse, child trafficking and child prostitution that plague our society, the Commission is of the measured view that it is not advisable to tinker with the existing age of consent under the POCSO Act,” the report says.

The Commission has made it clear that reducing the age of consent would not be advisable as it is of the firm view that a child is not capable of giving consent. The stand taken by the Commission is that since protecting children from any sexual abuse or exploitation is of paramount consideration, reducing the age of consent would be detrimental to fulfilling the objective of the Act.

“..observations of the Supreme Court as well as the Parliamentary discussions that took place after the introduction of the POCSO Bill in 2011, it is amply clear that the law is strict in its application and the element of "consent" of a child can have no role to play whatsoever. When the victim is a child, there can be no question of consent and any claim of there being consent is totally meaningless,” the report categorically states. 

The Law Commission has submitted its report after consulting the National Commission for Protection of Child Rights (NCPCR), former judges, lawyers, child rights activists, NGOs and academicians who are experts in the field. The Commission has also sought relevant data from High Courts and the National Crime Records Bureau. The Commission in its report has put forth several arguments that have emerged out of its consultative process, to not interfere with the age of consent under the POCSO Act.

The report states that since POCSO Act is an important tool to combat child trafficking and child prostitution and altering the definition of “child” under the Act to under 18 years of age, would be hamper its effectiveness.  

The report also puts forth the argument that trafficking can be done in the garb of child marriage and the POCSO Act is an important tool to deal with such situations.

The Report argues that reducing the age of consent could give lead to rise in child marriages and further exploitation of the girl child. According to the report, the Prohibition of Child Marriage Act, 2006 (PCMA) is a weak law as it does not deal with the question of sexual relations with a minor spouse, which the POCSO Act has helped remedy. “Any decrease in the age of consent would negatively impact the age-old fight against child marriage by providing parents an opportunity to marry off minor girls. PCMA is silent on age of consent and sexual relations with a minor, with the POCSO Act filling this void. especially after Exception 2 to Section 375 of IPC was read down by the Supreme Court in 201 7. The Parliament is already considering increasing the age of marriage for girls to 21 years, at par with boys, and thus any decrease in the age of consent would be against the tide of rational change,” the report says.

The Law Commission acknowledges that the intent of the POCSO Act was never to penalise romantic consensual relationships between minors. However, this cannot be the sole reason to risk exposing children to exploitation by removing the protection guaranteed under the Act, the report suggests. “To address a specific undesirable situation that has arisen. thousands of children, especially girl children who are in particular danger of being trafficked or abused, cannot be deprived of the protective edifice that exists on account of strict provisions of the POCSO Act, which may be their only armour,” the report states.

The report also highlights that considering 'consent' in so-called 'romantic cases' between two adolescents or one adolescent and an adult, will legitimize violations under the PCMA. In many cases, the plea taken before the court is that the victim and accused have married each other or are going to marry each other. Accepting the same will encourage child/teenage pregnancy and will have a disastrous impact upon the health of the child who ends up entering a marriage at a premature stage and also the offspring born in such a context, the report says.

The report also says that children in the age group of 16 to 18 years are especially vulnerable when it comes to grooming and manipulation particularly in the digital age. Any reduction in the age of consent will give pedophiles an opportunity to exploit young children, the Law Commission says. The report specifically cites increasing instances of grooming, online child abuse and cyberbullying as a reason to not reduce the age of consent. Children are at high risk of exploitation, especially in the digital age, the report points out.

“The access to the internet, including to children, has increased in recent times. This is marked by the emergence of new dangers against children. There has been an alarming rise in cases of online child abuse and cyber-bullying. A worrisome dimension of these cases is that children and young people in romantic relationships, especially girls, are more vulnerable to online sexual abuse. There has been an observable rise in incidents of sextortion and online grooming involving children. There has also been a rise in the availability of child sexual abuse material online.”

The report also draws attention to the socio-economic factor regarding the age of consent. Lowering the age of consent and allowing children to enter into such relationships will trap children in the vicious cycle of multi-dimensional and multi-generational poverty, the report says.  The report also stresses on the possible effect on the mental and physical growth of children facing exploitation, trafficking, prostitution etc. as a reason to not reduce the age of consent. 

The report highlights an emerging trend in Assam, where parents arrange marriage between minors or a minor and an adult by signing notarized agreements stating they have fallen in love.  "A disturbing development was highlighted from the State of Assam, wherein some parents arrange marriage between minors or a minor and a major by signing notarized agreements, stating that the minors or the minor and major had fallen in love and hence the families had decided to marry them off. Through these incidents, it was demonstrated that any reduction in age of consent will inevitably provide an escape provision to coerce minor girls into subjugation, marital rape and other forms of abuse, including trafficking," the report says. 

The report also emphasizes that children, both physically and mentally, lack the maturity to comprehend the meaning and consequences of consent in sexual acts. It cites studies by the Ministry of Women and Child Development and the Kailash Satyarthi Children's Foundation, which reveal that children aged 15-18 are highly vulnerable to exploitation and abuse, often at the hands of friends and romantic partners. "Any element of consent is going to be an easy escape route for adult abusers, thereby enabling prostitution and exploitation of children," the report states. 

The report also highlights shortcomings in the legal system, where courts have failed to analyse why victims become uncooperative or even encouraged victims to marry their abusers. "All of these concerns are further compounded by the increased vulnerability and danger that children face in a digital world," the report adds. 

In cases of consensual sex where both the parties are under 18 years of age, proper application of the Juvenile Justice Act can prevent miscarriage of justice and avoid severe consequences, the report suggests. However, when one of the parties is an adult, then guided judicial discretion must be exercised to address the question of consent depending on the facts and circumstances, the report says. 

Also Read - Law Commission Recommends Amendments To POCSO Act & JJ Act To Avoid Imprisonment For Adolescents Involved In Sexual Activity

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