Age of consent: NCPCR likely to advise govt against accepting Law Commission recommendations

New Delhi: The apex child rights body NCPCR is likely to advise the government against accepting the Law Commission's recommendations on the age of consent for introducing guided judicial discretion in POCSO cases involving "tacit approval" of adolescents in the 16-18 age bracket, sources said.

The NCPCR has also raised questions on the veracity of the policy brief published jointly by Enfold Proactive Health Trust, UNFPA and UNICEF, which was considered by the Law Commission in bringing out its report on the age of consent, saying it gives "misleading" arguments on the implementation of the POCSO Act, sources said.

"After the publishing of report by Enfold on 'Implication of the POCSO Act in India on Adolescent Sexuality: A Policy Brief', on several occasions it has been highlighted that around 25 per cent of cases pertaining to POCSO matters are under romantic relationships which is a wrong statement because unfortunately, Enfold has analysed the orders of various courts and not the cases per se. The actual scenario differs in the said context," the NCPCR said in its submission to the Law Commission.

The sources said the NCPCR will now be approaching the government next week to advise against accepting the recommendation of the Law Commission on the issue of giving judiciary discretion in the POCSO cases involving tacit approval of children aged 16-18 years.

The National Commission for Protection of Child Rights (NCPCR) has also written to UNICEF asking it to withdraw the document.

The Law Commission has advised the government not to tinker with the existing age of consent under the Protection of Children from Sexual Offences Act (POCSO) and suggested introducing guided judicial discretion in the matter of sentencing in cases involving tacit approval of children in the 16-18 age bracket.

During the consultations, the NCPCR strongly advised the Law Commission to maintain the age of consent at 18 years and also opposed giving judicial discretion to the judges in the matter.

"It is pertinent to highlight that considering the judgement from one point of view may lead to the ignorance of the aspect of sexual violation against minor children which protects minors below the age of 18 years under the POCSO Act," the NCPCR had said in its recommendations to the Law Commission during the deliberations in May.

The NCPCR, in the document accessed by PTI, had said that the two references used by the Law Commission from the Madhya Pradesh and Karnataka high courts have failed to appreciate that both the cases should have been viewed seriously with respect to child marriages since the parties in the cases agreed to be married to each other even though being minors and not of permissible age for marriage.

"It is seen that this particular is not only in violation of Prohibition of Child Marriage Act but is also against the fundamental principles of the Constitution of India," the NCPCR told the Law Commission.

However, giving judicial discretion in sentencing in POCSO cases involving tacit approval may raise these issues and the NCPCR now plans to advise the government against accepting these recommendations, sources said.

The NCPCR had also recommended strongly against reducing the age of consent, saying lowering the age of consent to have a romantic relationship before 18 years of age will legitimise the sexual relationship of a child with either another child or even with a major and the fact of any minor girl getting pregnant cannot be overlooked as well.

"It is generally observed that when a girl child gets pregnant after falling in a love trap then not only it is bad for her health but also the child also suffers from many health-related problems.

"In such a situation, when a girl in her adolescence gets pregnant due to unsafe sex and gives birth to a child, then the life of both mother and child becomes severely jeopardised," the apex child rights body had said.

In the deliberations, the Law Commission in the report submitted to the Law Ministry had said three possible solutions came up -- blanket reduction of the age of consent to 16 years as was the situation prior to the enactment of the POCSO Act, introducing a limited exception in case of a consensual sexual act involving a child above the age of 16 years, and introducing judicial discretion in sentencing in cases of in consensual romantic relationship between adolescents or with an adolescent between the age of 16 to 18 years.

The panel last week said the third solution of introducing judicial discretion in sentencing seems to strike a delicate balance to address the issue at hand and at the same time protecting children from sexual exploitation.