The Bombay High Court granted bail to an accused in a POCSO case, stating that the 14-year-old girl had “sufficient knowledge and capacity to understand the full implications of her actions” as she voluntarily stayed with the accused for four days. The court also supported its decision based on the fact that the prosecutrix admitted the relationship was consensual. This has ignited the debate on whether India should lower the age of consent. According to the POCSO Act, the consent of a child under 18 years is not legally valid, and even if sexual contact is established with mutual consent, it would still constitute an offence under the Act.
The minimum punishment for penetrative sexual assault in POCSO is 10 years, and it is 20 years if the victim is below 16 years of age. The gravity of the offence and stringency of the Act is apparent from the quantum of minimum punishment. In this case, the prosecutrix was only 14 years old at the time of the alleged offence, and the accused was 19 years old, an orphan. The accused has already spent five years in jail. As per POCSO, children have been bracketed into two age groups: Those under 18 and those under 16. It presumes that a child above 16 is in the age of discretion, meaning he/she is capable of understanding the consequences of his/her acts. This classification in POCSO and the Juvenile Justice Act 2015 wherein children between 16 and 18 years are considered in the age of discretion and thus may be tried as adults depending on judicial discretion, has formed the basis of the argument that the age of consent should be reduced to 16 in India. In most countries, the age of consent is between 14 and 16 and it is often argued that sexual relations shouldn’t be confused with the age of marriage. Thus, the age of consent needs to be reduced to 16.
There has been a rise in false POCSO cases because of its stringent punishments and the courts have often raised their concerns over such cases. Provisions of POCSO are sometimes falsely invoked in matrimonial disputes to secure the custody of children, vindictive litigation wherein the boy has refused to marry the girl later or where parents of the girl disapprove of a consensual relationship and coerce the girl to depose otherwise. This has led to a difficult situation where the prosecuting agency and the judiciary find themselves in a sticky position since a mere accusation will not just be detrimental to the social, mental and emotional well-being of the accused, but also disrupt his educational and employment prospects. In this background, the central government had directed the Law Commission to evaluate whether the age of consent should be reduced to 16 from 18. The Commission opined that it would defeat the safeguards of the Prohibition of Child Marriage Act (2006) and the provisions against child trafficking. However, the Commission recommended that “guided judicial discretion” may be exercised to deal with this misuse.
The moot point is that guided judicial discretion may not be enough to deal with this misuse because, by the time discretion is exercised, a lot of irreparable damage has already happened to the accused in cases where it is consensual. The problem is something bigger. Even in the 21st century, the Indian government has incorporated Section 69 in Bharatiya Nyaya Sanhita which punishes consensual sex if it is obtained by false promises to marry. It implies that the government is pushing the idea that sex has transactional value and premarital sex is immoral. It is this component of laws in India and the social notions about sex that need to be changed to stop the misuse of these provisions.
The writer is a Delhi-based lawyer
