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EDITORIAL ANALYSIS: Law Commission age of consent recommendations threaten to criminalise the young

Law Commission age of consent recommendations threaten to criminalise young

 
Source: indianexpress
For Prelims: Law Commission, POCSO Act
For Mains: General Studies II- Age of Consent recommendations might Criminalise the Young
 
Highlights of the Article 
 
Law Commission of India
POCSO ACT, 2012
Convention on the Rights of the Child (CRC)
Indian Penal Code
 
Context:
The 283rd report of the Law Commission of India (LCI), which has advised against tinkering with the existing age of consent under the Protection of Children from Sexual Offences (POCSO) Act, is a lost opportunity
 
UPSC EXAM NOTES ANALYSIS:
 
 1. Law Commission
"Law Commission" typically refers to an independent body or organization established by a government to review and recommend reforms in the legal system and the administration of justice. These commissions are often tasked with conducting research, studying legal issues, and making recommendations to improve and modernize the legal framework of a country.

some common objectives include:

  1. Law Reform: Law Commissions are often tasked with reviewing existing laws and identifying areas where reform is necessary. They may propose changes to outdated or ineffective laws and regulations.

  2. Legal Research: They conduct legal research to analyze complex legal issues and provide expert advice to the government and lawmakers.

  3. Drafting Legislation: Law Commissions may draft new legislation or amend existing laws to address emerging legal challenges and societal needs.

  4. Consultation: They often engage in consultations with stakeholders, including legal professionals, academics, and the public, to gather input and feedback on proposed legal reforms.

  5. Reports and Recommendations: Law Commissions produce reports and recommendations that are submitted to the government or relevant authorities. These reports serve as a basis for legislative action.

1.1.283rd report of the Law Commission of India (LCI)
  • The LCI report traces the historical origins of the age of consent in law, through to the contentious positions relating to POCSO.
  • Positions are divided between retaining the age of consent at 16 with close-in-age exceptions for consensual sexual activity between peers, as against a blunt increase in the age of consent to 18, which was adopted by POCSO.
  • The report outlines approaches adopted in the US, Canada, Japan, Australia and South Africa, all of which have lower ages of consent and additionally, protect adolescents from shame and stigma for consensual sexual activity through close-in-age exceptions.
  • Its stakeholder consultations were limited, missing inputs from public health experts, gynaecologists, child psychologists, counsellors, and shelter homes, who, as first responders, offer valuable insights
  • The LCI recommendations favour retaining the age of consent at 18 years, to criminalise both abuse and non-coercive consensual sex, even when this occurs between peers
  • By way of mitigation, it recommends judicial discretion to award less than the mandatory minimum sentence of 10 years and provides guidelines for determining types of cases that are befitting of sentence reduction. The proposed mitigation is flawed on three counts
  • First, the “close-in age” exception operates at the sentencing stage, so consensual sexual activity with a minor between 16 and 18, even where the accused is not more than three years apart, remains an offence
  • Second, a new term, “tacit approval”, is introduced to replace “consent”. Consent is defined in law, backed by jurisprudence. Consent to medical examination is recognised for victims of sexual assault who are 12 years and above in the Ministry of Health and Family Welfare guidelines
  • Third, a checklist of circumstances to guide whether or not exemption operates is provided.
2. Age of Consent
  • The age of consent refers to the age at which an individual is considered legally competent to engage in sexual activity and provide informed consent to engage in sexual acts.
  • It is a critical legal concept that varies from one jurisdiction to another and can have significant implications for both criminal law and the protection of minors.
  • The judicial references called for reviewing the criteria for the age of consent to sexual activity, to mitigate the “gross injustice in cases of statutory rape where de facto consent is present”.
  • The increase in the age of consent from 16 to 18 years with the enactment of the POCSO ACT, 2012, has magnified the volume of prosecutions against adolescents engaged in non-coercive consensual sexual activity with devastating outcomes, primarily for adolescents and youth from marginalised populations.
  • The age of consent is not uniform worldwide and can vary widely depending on the country or even within different regions or states of a country.
  • In many countries, the age of consent is typically set by law and is intended to protect individuals, particularly minors, from sexual exploitation and abuse.
3. POCSO Act
The POCSO Act, which stands for the Protection of Children from Sexual Offences Act, is an Indian law enacted in 2012 to address and combat sexual offenses against children. The primary objective of the POCSO Act is to provide a comprehensive legal framework for the protection of children from sexual abuse and exploitation and to ensure the speedy investigation and prosecution of such cases.

Key provisions and aspects of the POCSO Act include:

  1. Special Courts: The POCSO Act mandates the establishment of special courts for the speedy trial of cases related to child sexual abuse. These courts are intended to ensure that cases are dealt with promptly and that children are not subjected to prolonged legal proceedings.

  2. Child-Friendly Procedures: The Act includes provisions to make the legal process child-friendly. This includes the use of special interview rooms, in-camera proceedings, and the appointment of support persons or legal guardians to assist the child during the legal process.

  3. Presumption of Guilt: The POCSO Act introduces a presumption of guilt on the accused, which means that once certain facts are established, it is presumed that the accused is guilty unless proven otherwise. This places the burden of proof on the accused to demonstrate their innocence.

  4. Stringent Penalties: The Act prescribes stringent penalties for offenders, including imprisonment ranging from a few years to life imprisonment, depending on the severity of the offense. Repeat offenders can face even more severe penalties.

  5. Mandatory Reporting: The Act mandates that any person who has knowledge of a sexual offense against a child must report it to the authorities. Failure to report such offenses can result in legal consequences.

  6. Protection of Child Witnesses: The Act includes provisions for the protection of child witnesses, including the option to use screens or video conferencing during the trial to shield the child from the accused.

  7. Non-Bailable Offenses: Many offenses under the POCSO Act are non-bailable, meaning that the accused may not be released on bail easily and may remain in custody during the trial.

4. Challenges
Protecting the young from sexual abuse is of universal concern, which POCSO aims to serve. Equally important is the task of protecting the young from being shamed, punished and incarcerated for exploring what is developmentally appropriate for their age
The onset of puberty at 10-11 years brings with it the biological, psychological and emotional stirrings of sexuality, the desire to learn and explore
Challenges include as following:
  • The Law Commission has argued that lowering the age of consent would make it easier for adults to have sex with minors, even if the minors are willing participants. This is because adults would be able to claim that the minor consented to the sexual activity, even if the minor did not give full and informed consent
  • Different regions or countries may have varying cultural and societal norms regarding sexual activity and the age at which individuals are considered capable of giving consent. Recommendations from a Law Commission may not be universally accepted or may face resistance in culturally diverse societies.
  •  Law Commission recommendations can become a matter of political debate and contention. Politicians may resist changes to the age of consent laws for various reasons, including concerns about voter backlash or differing personal beliefs.
  • Age of consent laws are designed to protect vulnerable populations, particularly minors, from sexual exploitation and abuse. Recommendations must balance the need to protect these individuals while respecting the rights and autonomy of older teenagers.
 
5. Conclusion
Recommendations from a Law Commission regarding the age of consent are likely to be met with a range of challenges, and their successful implementation requires careful consideration of legal, cultural, and societal factors, as well as a commitment to protecting the rights and well-being of vulnerable populations, particularly minors. Public consultation, education, and legal reforms can help address these challenges
 
 
 
Practice Mains Questions
 
1.Discuss the role and functions of the Law Commission in India. How has it contributed to legal reforms in the country?
2.Explain the significance of the Protection of Children from Sexual Offences (POCSO) Act. Analyze the challenges in implementing and enforcing the age of consent laws in India. 
3.Compare and contrast the age of consent laws in India with those in another country of your choice. Discuss the cultural, legal, and social factors that influence age of consent regulations.
 
 

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