TOPIC- SHOULD THE AGE OF CONSENT BE REVISED IN INDIA?

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THE CONTEXT: Recently, the Bombay High Court said that it is high time India considered reducing the age of consent for sex. The court pointed out that after the enactment of the Protection of Children from Sexual Offences (POCSO) Act, 2012; many adolescents are being prosecuted for consensual relationships with minor girls. While the Supreme Court and several High Courts have underlined concerns over the criminalization of adolescent sex, the issue of the age of consent remains much debated.  This article discusses these issues in a comprehensive manner to enable the students to develop the right perspective.

THE MEANING OF CONSENT

•  ‘Age of consent’ refers to the legally defined age at which an individual is considered capable of granting consent for sexual activities. The age of consent was 16 prior to the enactment of the POCSO Act.

        The POCSO Act categorizes any sexual acts involving individuals under 18 as criminal offences, irrespective of whether actual consent exists between minors.

        This is based on the legal presumption that individuals below 18 are incapable of providing consent in the legal context.

• Section 375 of the IPC defines Consent as “unequivocal,” “voluntary,” and “willing,” according to the definition, and the will must be “communicated.” It still contains the age bar of 18 years below which any act of consensual act of sexual intimacy will be treated as rape.

DEMAND FOR REDUCING THE AGE OF CONSENT

• Does not reflect societal realities: The law is criminalising adolescent sexuality rather than focusing only on child sexual abuse. For instance:
  • The study by Enfold Proactive Health Trust, Bengaluru, found that 93.8% of “romantic cases” tried under POCSO ended in acquittals. The findings were based on an analysis of 1,715 “romantic cases” registered and decided by special courts in Assam, Maharashtra and West Bengal between 2016 and 2020.
  • The Hindu in its study based in Delhi (2013) and Mumbai (2015) found that in approximately 33 per cent and 23 per cent of the sexual assault cases involving adolescent girls respectively, the girl stated that the sexual intercourse was consensual.
  • A similar study by the National Law School of India University, Bengaluru shows that a considerable proportion of adolescent girls between 16-18 years of age refuse to testify against the accused under the POCSO Act.
• Observations by various High Courts: Courts have underlined concerns over the criminalization of adolescent sex. For Instance:
  • In Vijayalakshmi vs State (2021) the Madras High Court stated that punishing an adolescent boy, who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act.
  • In 2021, the Delhi High Court in AK v. State Govt of NCT of Delhi stated that the intention of POCSO was to protect children under the age of 18 years from sexual exploitation and not to criminalize romantic relationships between consenting young adults.
  • More recently in June 2023 at least three different High Courts have either quashed First Information Reports (FIRs) and pending criminal proceedings or acquitted accused persons under the Protection of Children from Sexual Offences (POCSO) Act, 2012. One High Court released the accused on bail on the grounds that the accused and victim had consensual sex.
• The abuse of the judicial process on teenagers is also evident from the fact that between 2010 and 2013, a total of 1,728 cases were registered in Tamil Nadu, of which 1,274 cases remain pending after a decade. The Madras High Court decided to identify such cases of consensual relationships and cancel them if they impacted the future of the children involved.
• Many societies and cultures link age for sexual consent to puberty. Traditionally, in India, sex and marriage have been considered synonymous. However, given that the age for puberty has dropped in the recent past and society has changed, there are concerns about the age for sexual consent and its implications on the health and psyche of young people. It is high time the legislature look into the grey area resulting in criminalising consensual teenage relationships.
• Reducing the age of consent will also ensure much-needed reforms and access to sexual and reproductive health services to adolescents, along with comprehensive sex education to help them make informed decisions.
• Several countries have taken cognisance of the peculiar reality between ‘sexual autonomy’ and ‘sexual aggression’. Germany, Italy and Hungary, for example, consider children 14 years and above to be old enough to give consent.

CASE AGAINST REDUCING THE AGE OF CONSENT

• Around 12 lakh minor girls in India are involved in commercial sex, according to data from the Ministry of Women and Child Development. These girls know what they are doing and they depend on the sex trade for their livelihood. But doing something in a vulnerable situation due to a lack of choices is not consent. If we lower the age of consent, we cannot try the cases in which money has been exchanged for “consent”.
• Consent is a nuanced theme. Courts ought to consider various factors, for instance, the age gap between the accused and the victim, power dynamics, caste equations etc on a case-by-case basis to assess/establish consent.
• In December 2021, the Union Cabinet cleared a proposal to raise the legal age of marriage for women from 18 to 21 years to bring it on par with men. The government cited gender neutrality, risks of early pregnancies and overall empowerment of women as reasons to increase the age of marriage. While this proposal is pending, it is believed that lowering the age of consent may be counterproductive for women, especially for teen adults when it comes to their bio-social aspects (education, health and bodily autonomy).
• The average conviction rate in POCSO cases across the country (between 2017 and 2019) was around 30 per cent, as per NCRB data. It would be unwise to amend the age of consent under the POCSO Act on the assumption that out of every 100 cases, only 30 were pronounced guilty.
• As part of revamping its laws relating to sex crimes, Japan in June 2023 has raised the age of sexual consent from 13 to 16 years. This is the first time Japan has changed its age of consent since 1907 when the law was first enacted. Meanwhile, the highest age of consent is reportedly in Bahrain at 21. The protection of consenting adolescents against criminal proceedings does not necessarily mean reducing the age of consent. Necessary provisions can be included in the POCSO Act itself to protect consensual relationships.

WHETHER THE AGE SHOULD BE REVISED?

The debate on the issue of the age of consent shall not be based only on terms like law, changing society, age of maturity etc instead there is a need to take an integrated and holistic approach including autonomy. The cognitive capacity of the individual, psycho-social maturity, emotional development and economic factors shall also be considered.  Courts in India are flooded with cases on the rampant misuse of the POCSO Act in which consenting teenagers are prosecuted for romantic acts.  The rigor of POCSO has also become a tool in the hands of conservative elements including family members in order to punish the relationship outside the traditional identity norms.

However, it is also a fact that the mental and moral development of children may not be sufficient to make informed choices and consent based on free will. There is a high possibility of their decisions being based on some extraneous considerations. Also, their naivety may be taken advantage by a perpetrator. It is the responsibility of the State to safeguard the ability of persons  to take decisions and their autonomy while at the same time, it has the duty to protect them from harm. Thus a  broader debate involving the large cross-section of society is needed before deciding on the issue of the age of consent by keeping the interests of children at the centre.

THE WAY FORWARD:

• Legal Reforms: The most common way in which legal systems around the world have sought to resolve the inconsistency in the age of consent laws is by moving from a ‘hard’ to a ‘soft’ approach, whereby a single age of consent is replaced by different ages of consent for different age groups. Such provisions are known as ‘close-in-age’ exemptions to the age of consent law.

For instance, in Canada, while the general age of consent is 16 years, a 14-year-old may legally give consent to sexual activity with a person not more than five years older in age, i.e. a person of the age 14-19.

In India, the failure of POCSO to address adolescent sexuality has also been recognised as a legal grey area by the courts. Learning from the legal interpretations around the world a progressive approach shall be reflected in the Indian laws.

• Societal changes: Acceptance of adolescent sexuality, comprehensive sexuality education, and a supportive state apparatus are imperative for creating options for a progressive society for adolescents to enjoy healthy and informed relations.
• Issue guidelines: Several High Courts and rights activists have opined for the amendment to the age of consent criteria and now the ball lies in the government’s court to look into the issue. Until the Parliament as the custodian of the rights of the citizens, initiates a process to address the issue, the Apex Court can provide guidelines.
• Awareness generation: Adolescents have to be made aware of the stringent provisions of the Act and also the IPC so that they can be saved from being at odds with the law unintentionally.
• Balanced approach: The Law Commission after the examination of various laws and the provisions therein should also try to make a balanced and progressive suggestion by accommodating the changing realities of the society as well as protecting the children against any unwarranted acts.

THE CONCLUSION: There is a compelling need for legal reform to revise the age of consent and prevent the criminalization of older adolescents engaging in consensual and non-exploitative acts. There is a need for gender awareness and sensitivity among the youth along with making necessary changes in the law to make it less rigorous and cognizant of the changed realities of societies around the world.

Mains Practice Questions:

Q.1 There is a need for legal reform to revise the age of consent and prevent the criminalization of older adolescents engaging in consensual and non-exploitative acts. Comment.

Q.2 The outcome of the interplay among law, technology and social change necessitates a relook into the fundamental assumptions about the level of psycho-social and physiological development of children. Elucidate.