LAW COMMISSION TO RECOMMEND CHANGING THE CONSENTING AGE.
The 22nd Law Commission will soon be releasing its report regarding the minimum age of consent with respect to the Protection of Children from Sexual Offences Act, 2012 (“POCSO”). Currently, the legislation provides 18 years to be the minimum age of consent. The report has been formulated in light of concerns raised by the Supreme Court along with several High Courts, with the primary concern being the criminalisation of adolescent sex.
Justice DY Chandrachud, Chief Justice of India (CJI), and Karnataka High Court in State of Karnataka v. Basavraj [Criminal Appeal No. 100515 of 2021] had requested that the lawmakers look into the increasing concern over the criminalisation of voluntary and consensual sexual activity amongst adolescents under the POCSO. The same can be seen in the consistent flow of cases of minors, usually 16-18 years old, being flagged under the POCSO for engaging in consensual sexual activity. The complaints are usually filed by the girl’s parents. These cases don’t always result in the conviction of the minor, but it does result in the trial being drawn out for an extended period of time and denial of bail pleas.
In a study conducted by the United Nations International Children’s Emergency Fund (UNICEF)- India and Enfold Health Trust showed that one out of every four cases under the POCSO in Maharashtra, West Bengal and Assam were that of eloping where the accused and the victim were in fact in consenting sexual relations. The CJI, along with the courts, have been right to express concerns over the consenting age, as despite the intent of the enactment, POCSO now fails to distinguish between exploitative sexual conduct and common sexual expressions by adolescents. Rather, it ends up criminalising both, resulting in over-regulation and silencing of voluntary sexual relationships that involve a minor girl. Several police departments have been warned not to over-criminalize and to refrain from hastily arresting minors, but this is rarely followed.
This phenomenon merits the attention of the legislature as it is systematically victimising a consenting minor girl against her wishes. The POCSO, along with the Child Marriage and Medical Termination of Pregnancy Act, 1971, set up a complex legal web that then undermines the girl’s privacy and will. It deprives her of her dignity and her sexual and reproductive liberty. It takes away from her person. This is only catalysed by the social norms and mentality possessed by the Indian populace that women have no sexual will of their own and further contributes to the overall poor sexual awareness amongst girls.
Any law that criminalises the sexuality of an adolescent or aids in such criminalisation either ignores or pretends to ignore the on-ground social reality. It dismisses the possibility of girls voluntarily engaging in sexual activity, thus effectively desexualising her, which then contributes to the furtherance of rape mentality and undermining of a woman’s sexual autonomy.
The Law Commission had agreed to take cognisance of the following key matters:
1. The Government’s proposal to increase the minimum age of marriage for women from 18-21 years and bring it at par with their male counterparts.
2. To address the disparity between the POCSO and the Muslim Personal Law as the later holds girls eligible for marriage after they hit puberty.
While the report is still pending, it is expected to be submitted this month.