The discussion and debate about the Age of Consent must end with the Central Government’s unequivocal stand against lowering it.
Firstly, a holistic approach is imperative and secondly, the provisions of laws other than POTA ought to be noticed. POTA is enacted to protect children from offences of sexual assault, sexual harassment and pornography.
The best interests of a 'child' still not secure
The law was enacted after India acceded to the Convention of the Rights of the Child, adopted by the General Assembly of the United Nations. It has completed more than a decade, but the best interests of the child are still not secured. The word ‘child’ means any person below the age of 18 years. It is apparent that the law is Gender Neutral. A child includes both a male and female. Worldwide, a child is exploited, enslaved, abducted and kidnapped even from lawful guardianship. In the latter case different ages are prescribed for Minors. Simply because sixteen years is the minimum in Section 361 IPC does not mean that can be imported and read into POTA. Pertinently, in the same Section for female minor the age prescribed is 18 years. This difference is maintained in Section 363A IPC. Moreover, age is immaterial for the offences punishable under Sections 364, 364A, 365 and 366 IPC.
Importantly, Section 366A employs the word “minor girl” and prescribes minimal age of 18 years. For Importation of girl from foreign country for the offence punishable u/s 366B the minimal age prescribed is Twenty One Years. Advisedly, the words “Child under Ten Years” are used in Section 369 IPC but here the offence is peculiar as the intention of kidnapping or Abduction is to steal. Consent of the victim is immaterial in determination of offence of Trafficking of a minor or otherwise. The word ‘Minor’ is inserted to prescribe enhanced punishment for the same offence involving it. For dealing with Sexual exploitation of Minors the existing provision in IPC is substituted. It is necessary to refer to above expressions because the Indian Penal Code defines the words ‘man’ and ‘woman’ but
wherever it is creating an offence, against minors, it has used that specific expression. It has also used the expression ‘girl child’. Similarly, when the throwing into prostitution or subjecting to prostitution or sale for that purpose is concerning a female child, the minimal age is 18 years.
In such circumstances, without fully appreciating the significance of protective measures in POTA or otherwise, the age cannot be reduced if sexual crimes against children are to be curbed. The impact of lowering of the age of consent must be therefore borne in mind.
Chapter II of POTA deals with sexual offences against children, whereas Chapter III punishes use of child for pornographic purposes and prescribes punishment therefor. Chapter IV thereof while dealing with abetment and attempt to commit an offence, punishes abetment and attempt to commit an offence separately. The expression ‘abetment’ is defined in Section 16 and the explanation thereto deals with several acts involving children. The explanations are incorporating the words found in the Indian Contract Act, 1872. They are widely worded so that none escapes from the law. A child is an Asset of the nation. It is a future citizen. Every child whether rich or poor, boy or girl belonging to any social strata and residing in any part of the country is entitled to full protection of laws enacted for its benefit. That is why there is a special procedure for reporting of cases under POTA. That is set out in Chapter V. Chapter VI deals with procedures for recording statement of the child. The offences enumerated in the law are grave and serious. They affect the dignity and self respect of children. The child should not be exposed to a environment or atmosphere detrimental to its Overall growth.
Section 42 of POTA is seldom referred in the discussion on the age of consent. The said Section clarifies that where an act or omission
constitutes an offence punishable under POTA and also under several sections of the Indian Penal Code enumerated therein, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under Protection of Children from Sexual Offences Act or under IPC as provides for punishment, which is greater in degree. Thus, POTA is not in derogation of any other law. There is a presumption of culpable mental state and Section 30 must be perused in that behalf.
To my mind, stakeholders are openly Questioning the wisdom of the legislature. In their opinion, ordinarily children of certain age are conscious and aware of the consequences of Sexual Acts. This is untrue as child is unable to fully comprehend the Injury and damage to mind and body while participating in a sexual activity. Children unlike adults cannot distinguish between safe and unsafe sex. In such circumstances, it is unfortunate that discussions are held on half- baked information. The provisions of the Indian Contract Act, the Majority Act are wholly omitted from consideration. Lastly, while dealing with sexual offences, particularly “Rape” the Indian Penal Code says that a man is said to commit rape if he commits any of the acts set out in clauses (a) to (d) of Section 375 against the woman’s will and without her consent and importantly with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. The words and expressions in thirdly, fourthly, fifthly, sixthly and seventhly indicate that even with or without the consent, the acts enumerated in Section 375 if committed against a woman under 18 years of age would be punishable. Notably, the language of Section 3 of POTA and Section 375 of IPC is identical. Sections following Section 375 IPC ought to be read together with provisions of Chapter II-B to D of POTA. Chapters II and III of POTA deal with Sexual harassment and using
child for pornographic purpose and should be harmonized with Sections 354, 354A to D of IPC. Viewed in totality, Sexual acts performed with a female child below 18 years of age are justifiably prohibited and are offences.
Introduction of the theory of awareness or knowledge would be fatal. No attempt should be made by persons outside Parliament to redefine any expression or word statutorily defined and held to be legal and valid. In written laws every word and expression is defined to fulfill their object and purpose. Legislative drafting is not a mechanical exercise. Before a draft of a legislation to be tabled in the house is finalized, preceding it are rounds of discussions and debates with all stakeholders, including the civic society. Disagreement will not enable us to tinker with it. With greatest respect, those entrusted with duty to protect children and safeguard their interests, should not be frustrating Penal statutes including POTA. Grant of bail and other reliefs cannot be upheld, inter alia, on the ground that a child of 14 to 16 years is sexually active and alert. If children are victims of crime, perpetrators shouldn’t be let off by displacing Lawful Presumptions. At a prima facie stage, a judge should avoid rendering conclusive opinions on law and facts. The investigations are hampered and the offender becomes wiser. A smart offender, particularly a close relative of the victim is likely to take advantage of the oral and written observations of courts. Witnesses may be deterred from freely deposing before the court.
Someday, we must acknowledge the fact that other view is not necessarily correct.
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