The 22nd Law Commission submitted a report to the Union Ministry of Law and Justice on Friday, 29 September, suggesting that it is "not advisable to tinker" with the existing age of consent. According to Indian law, the age of consent is 18 years.
The argument: Opposing the reduction of the age of consent to 16 years, the Law Commission said that it would reduce the Protection of Children from Sexual Offences (POCSO) Act, 2011, to a "paper law."
It “will lead to many unintended consequences of much severe nature…" the Commission argued.
“If there is an automatic decriminalisation once the defence of consent is claimed, then it must be borne in mind that consent is something that can always be manufactured… Further, the police investigation suffers from a great number of inadequacies and if it is the investigating agencies that get to determine if there was consent or not, then a lot of genuine cases that need to be prosecuted under the POCSO Act may not see trial on account of investigating agencies themselves declaring them to be cases of consensual romantic sexual relationship…"Law Commission Report
Of note: The commission, however, proposed amendments to the POCSO Act, in cases where there is explicit consent among those between 16 to 18 years of age.
“This is so because in our considered opinion, such cases do not merit to be dealt with the same severity as the cases that were ideally imagined to fall under the POCSO Act," the Law Commission panel, headed by Karnataka High Court Chief Justice Ritu Raj Awasthi, has said.
Key excerpts:
“The blanket criminalisation of sexual activity amongst and with a child, though intended to safeguard children, is leading to the incarceration of young boys and girls who engage in such activities as a consequence of sexual curiosity and need for exploration that may to some extent be normative for an adolescent."Law Commission Report
"There is a social cost associated with the present situation, including the negative impact upon the health, both physical and mental, of the children as well as a burden upon the investigating agencies and courts which takes away focus from the cases that are genuine and require immediate consideration,” the report added.
Suggested amendments: The Commission has recommended amendments to Sections 4 and 8 of the POCSO Act dealing with punishments for penetrative sexual assault and sexual assault.
It has suggested that the Special Court gives lesser sentences in cases where the child is of the age 16 or above, subject to explicit consent.
It also suggested making corresponding changes in Sections 375 and 376 (rape) of the Indian Penal Code (IPC).
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