The Law Commission of India in its 283^rd report, titled, ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012’ has recommended against amending the age of consent under the POCSO Act. This negative recommendation comes in light of growing cases of romantic relationships between minors, where de facto consent is present, but consent required under the law is absent. The report recommends introducing certain amendments to the POCSO Act and the Juvenile Justice (Care and Protection of Children) Act, 2015. I argue in this piece that the recommendations of the Law Commission do not address the problems that have arisen. Further, I suggest alternate amendments to the POCSO Act, which directly address the rising problems.

The Law Commission’s Recommendations

The present report was taken up after references were made to the Law Commission in this regard by the Karnataka and Madhya Pradesh High Courts. Both courts noted that there are rising number of cases of a minor girl above the age of 16 falling in love with a boy, eloping, and having sexual intercourse thus attracting the provisions of the POCSO Act. The relatives of the minor girl, typically the parents lodge a complaint against the boy, pursuant to which a charge sheet is laid, resulting in criminal prosecution of the boy. The courts note that although de facto consent of the minor girl is present, the law incapacitates the minor from giving sexual consent. The POCSO Act criminalises all sexual intercourse under the age of 18, for which the minimum punishment is 10 years.

The courts in their reference have suggested altering the age of consent under the POCSO Act. However, the Commission has rejected this recommendation. The Commission reasons in its report that, reducing the age of consent would provide an easier route for perpetrators of child abuse, child trafficking, child marriage, and child prostitution to escape prosecution, by allowing for the defence of consent of the child. Instead, the Commission recommends certain amendments to sections 4 and 8 of the POCSO Act and section 18 of the Juvenile Justice Act. These recommended amendments seek to increase judicial discretion in the sentencing of crimes under the POCSO Act in cases where the child is above the age of sixteen.