Law Commission age of consent recommendations threaten to criminalise the young

Source: This post has been created based on the article “Law Commission age of consent recommendations threaten to criminalise the young” published in The Indian Express on 10^th October 2023.

UPSC Syllabus Topic: GS Paper 2 Social Justice — Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes.

News: This article discusses the undesirable consequences of the current age of consent as provided under the POCSO Act, 2012 and the flaws in the Law Commission recommendations keeping this provision unchanged.

Judicial references have called for reviewing the criteria for the age of consent to sexual activity to deal with cases where consent was present. However, the 283rd report of the Law Commission of India (LCI) has advised against changing the existing age of consent under the Protection of Children from Sexual Offences (POCSO) Act.

What are the issues with the current provisions on the age of consent?

POCSO imposes a mandatory minimum sentence of 10 years for statutory rape without regard to whether the minors, including those between 16-18, consent.

This has magnified the volume of prosecutions against adolescents engaged in non-coercive consensual sexual activity. This has resulted in devastating outcomes, primarily for adolescents and youth from marginalised populations.

Data shows that criminalisation primarily harms the poor and the marginalised, with devastating consequences for girls.

The State has no obligation under the POCSO to provide the basic minimum required for the survival of the ‘survivor’”.

In Veekesh Kalawat vs State of Madhya Pradesh (2023) it was noted that a mandatory minimum sentence of 10 years for an underage husband resulted in destroying families in rural Madhya Pradesh, leaving the wife and children to the vagaries of social exploitation.

What are the recommendations of the report?

The LCI recommendations favour retaining the age of consent at 18 years, to criminalise both abuse and non-coercive consensual sex, even when this occurs between peers.

It mitigates the issues due to this by also recommending judicial discretion to award less than the mandatory minimum sentence of 10 years and provides guidelines for determining types of cases that are befitting of sentence reduction.

What are the flaws in the proposed mitigation?

First, the “close-in age” exception is not available as a defence for acquittal but only for sentence reduction. Criminalisation and incarceration will still happen.

Second, a new term, “tacit approval”, is introduced to replace “consent”. Consent is defined in law, backed by jurisprudence. The use of “tacit approval”, without a definition, is confusing.

Third, a checklist of circumstances to guide whether or not exemption can be applied has caveats that include circumstances listed include pregnancy, marital status, family acceptance, good behavior, absence of criminal antecedents and likely references to inter-faith and inter-caste relations.
These suggest that judicial discretion is guided in favour of underage sexual relations that occur within socially conforming marriages backed by familial support.

Another drawback of the report is that stakeholder consultations were limited, inputs from public health experts, gynaecologists, child psychologists, counsellors, and shelter homes were missing.

What should be the way forward?

The UN Convention on the Rights of the Child (UNCRC) calls for age-appropriate sexuality education, access to confidential medical counselling, and prohibits laws from criminalising consensual sexual activity with peers.

The US, Canada, Japan, Australia and South Africa have lower ages of consent and additionally, protect adolescents from shame and stigma for consensual sexual activity through close-in-age exceptions.

With the LCI overlooking these issues, the matter rests with the courts to address on a case-to-case basis, and the continuation of public dialogue.

The provision should ensure protection of the young from sexual abuse, while ensuring they are not punished for consensual sexual activity with peers.