Conflict of ages in laws that define a child
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In seeking to amend not just the criminal law pertaining to rape but also the Protection of Children from Sexual Offences (POCSO) Act, 2012, and bring the latter at par with the former's cutoff of 16 as the age of consent, the government has paved the way for reopening in Parliament a debate sparked by the Delhi gangrape — whether the definition of a child should be altered in the Juvenile Justice (Care and Protection) Act, 2000, too.
On Wednesday, the cabinet passed the rape bill with the age-of-consent clause and also passed an amendment to POCSO saying that a child would be anybody aged below 16. Over the last year and a half, two departmental standing committees, those for HRD and home, have unequivocally favoured a uniform definition of a child — as one aged below 18 — over an age-of-consent clause, so the revisions may come under very close scrutiny once they are tabled in Parliament.
The HRD standing committee in its report on POCSO had asked for the age-of-consent clause to be deleted on the ground that such a provision would "completely negate our legal commitments under UNCRC (United Nations Child Rights Convention)1989/1992 and JJ Act 2000/2006" besides leading to a "revictimisation of the victim" in the court proceedings to prove consent. The standing committee for home had earlier this month said that 18 being the cutoff age for marriage, voting and adulthood, there was no reason to encourage consensual sex before marriage.
Moreover, the move to amend section 2 of POCSO to replace the words "eighteen years" as "sixteen years" would bring it in conflict with the JJ Act. In simple terms, the question that may eventually need to be answered is that if a 16-year-old girl can be said to have been mature enough to give consent, then why a 17½-year-old boy (as was the case in the Delhi gangrape) cannot be charged with rape. In the wake of the Delhi gangrape protests, the government had firmly stood its ground about the irrevocability of the definition of child — a defence that may now need a re-explanation.
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