The Karnataka High Court has asked the Law Commission to rethink the age of consent under the Protection of Children from Sexual Offences, or POCSO, Act 2012.

What is the Age of Consent?

• The age of consent for sex in India is 18 under the POCSO Act.
• Consent given by a girl aged below 18 is not regarded as valid and sexual intercourse with her amounts to rape.

What did the HC say?

• The aspect of consent by a girl of 16 years, but who is below 18 years, would have to be considered.
• This has to be if it is indeed an offence under the Indian Penal Code and/or the POCSO Act, said the HC.
• The offender should be booked under Section 366 of the IPC, Section 6 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act, 2006.

What are the terms of the POCSO Act?

• Under the POCSO Act, 2012, considers a child anyone below 18 years of age.
• Even if the girl is 16 years old, she is considered a “child” under the POCSO Act and hence her consent does not matter, and any sexual intercourse is treated as rape.

Issues with such consent

• Consent is ignored: It thus opens the accused up to stringent punishment.
• Child abuse charges are ruled out: There have been several instances when the courts have quashed criminal proceedings of rape and kidnapping.
• Misuse of the provision: The court is often convinced that the law is being misused to suit one or the other party.

Is the law being misused?

(1) Foiling consensual relations

• Sometimes, disgruntled parents file a case to foil a relationship between two adolescents or children on the threshold of adolescence.
• POCSO is often used by parents who want to control who their daughters or sons want to marry.

(2) Coercion for marriage:

• The study noted that in many cases, a couple elopes fearing opposition from parents resulting run away to get married.
• The parents then book the boy for rape under the POCSO Act and abduction with the intent to marry under IPC or the Prohibition of Child Marriage Act, 2006.

Judicial interpretations for lower age of consent

• In 2021, in the Vijaylakshmi vs State Rep case, the Madras High Court, while dismissing a POCSO case, said the definition of ‘child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18.
• The court suggested that the age difference in consensual relationships should not be more than five years.
• This, it said, will ensure that a girl of an impressionable age is not taken advantage or duped sexually of by a person who is much older.

Policy measures so far

• A parliamentary committee is looking into the Prohibition of Child Marriage (Amendment) Bill, 2021 which seeks to increase the minimum age of marriage for women to 21 years.
• Rights activists feel instead of helping the community, raising the age may force vulnerable women to remain under the yoke of family and social pressures.

Way forward

• With the courts and rights activists seeking an amendment to the age of consent criteria, the ball lies in the government’s court to look into the issue.
• In the meantime, adolescents have to be made aware of the stringent provisions of the POCSO Act and also the IPC.

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