AGE OF CONSENT – POLITY

News: Child, law, and consensual sex

 

What's in the news?

       Recently, the Bombay high court has urged the parliament to reduce the age of consent.

 

What is the Age of Consent?

       Age of consent is the age at which an individual is considered to be legally competent to give informed consent to engage in sexual activities with another person.

       Under the POCSO Act 2012, India’s age of consent is 18 years.

       The POCSO Act (Prevention of Sexual Offences Act), 2012, criminalizes all sexual activities for those under 18, even if there is consent between the two minors.

       Provision under Section 375 of the IPC, sexual intercourse, whether with or without her consent, is rape if she is under 18 years of age.

 

Why is it important?

1. Prevent from sexual exploitation: Age of consent protects young individuals, who don't have enough sexual knowledge, from sexual abuse and sexual exploitation.

2. Protecting girl child health: Age of consent is necessary to protect the girl children from unwanted early pregnancies and thus health complications.

       They may not be aware of early pregnancies and its health impacts.

3. Right to be protected: As the point noted by the Bombay High Court, everyone has the right to be protected from unwanted sexual aggression.

       To ensure the above said fundamental right age of consent is necessary to help the law enforcement agencies to protect the vulnerable groups.

4. Legal Clarity: Defining a specific age of consent provides legal clarity and simplifies the legal process when cases of sexual misconduct or statutory rape arise.

 

Arguments in favour of reducing the age of consent:

1. Leverage the judiciary to decide cases: Reduce the age of consent with some leverage allowed to the judiciary to interpret consent in cases of the victim being of lower age based on the child’s understanding of consequences.

2. Overcriminalization: Most of the cases under the POCSO act are between 16 and 18 years; Reducing the age of consent will legalize consensual sexual activity above 16 years and   can reduce the issue of overcriminalization.

3. Right to bodily autonomy: With the advent of social media and no internet connectivity many people in the age group above 16 years have some understanding about the sexual activities and knowledge of contraceptive methods; So, the age of consent can be reduced from 18 to 16 years.

       The NFHS -5 report said that 45% of unmarried girls between 15-19 years have the knowledge of contraceptive use.

4. Case overburden: Criminalizing underage consensual sexuality (25 % of total POCSO cases) burdens the already-overburdened courts thereby clogging up the criminal justice machinery even more.

       Reducing the age of consent can effectively reduce the pendency of cases and reporting of new cases.

5. Inter caste and inter religious affairs: There is also ample data to suggest that the legal age of consent is selectively used by parents to target relationships that involve inter-caste or inter-religious affairs, and in general where the parents do not approve of the relationship.

       Reducing the age of consent can reduce the aforesaid actions.

 

Arguments against reducing the age of consent:

1. Risk of Sexual Exploitation: Lowering the age of consent may create opportunities for sexual predators to exploit vulnerable and impressionable young individuals.

       It could also lead to an increase in instances of statutory rape.

2. Health issues: There are public health considerations related to sexual activity, such as the risk of sexually transmitted infections (STIs) and unwanted pregnancies.

        Lowering the age of consent could increase these risks if younger individuals lack access to proper sex education and resources for protection.

3. Legal complexity: Determining consent and the ability to give informed consent might become more challenging, leading to potential difficulties in enforcing and prosecuting cases related to sexual misconduct.

4. Impact on education: Lowering the age of consent could potentially lead to a higher rate of early pregnancies and young parents, which may disrupt educational opportunities for those involved.

 

Judgements related to age of consent:

1. Bombay high court judgment 2022:  It ruled that there should be a balance of struck between protection of children against sexual abuse and their bodily autonomy.

2. Madhya Pradesh High Court Judgement 2023: It urged the central government to reduce the age of sexual consent from the current 18 years to 16 years, saying that the Criminal Law (Amendment) Act which raised the age of consent has “disturbed the fabric of society”, resulting in “injustice to the adolescent boys”.

3. Karnataka High Court Judgement 2023: High court urged the Law Commission of India to rethink the age of consent criteria, so as to take into consideration the ground realities.

4. Delhi High Court judgment: The intention of POCSO was to protect children below the age of 18 years from sexual exploitation. It was never meant to criminalize consensual romantic relationships between young adults”.

5. Madras High Court judgment: In 2021, in the Vijaylakshmi vs State, the Madras High Court, while dismissing a POCSO case, said the definition of ‘child’ under the POCSO Act can be redefined as 16 instead of 18.

       Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act.

6. In Dharmendra Singh v State Govt of NCT (2020), the Delhi High Court has attempted to increase the chances of bail of an accused in an “innocent yet unholy physical alliance” or where there is “tacit approval-in-fact” by the girl and the “age difference between the victim and the offender is less”.

7. Independent thoughts vs Union of India case 2018: The Supreme Court has struck down exception 2 of Section 375 of the IPC which decriminalized sexual intercourse by a husband with his wife between the ages of 15 and 18 years.

 

WAY FORWARD:

1. Law commission recommendation: The recommendations of the 22nd law commission, awareness measures on adolescent health care including making sex education mandatory and teaching the basics of consent under the POCSO Act in schools.

2. Madras High Court recommendation: The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more.

       So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumably infatuation or innocence.

3. Revising the act: Revising and updating the POCSO Act in order to address the changing needs and realities of modern society is important in order to ensure that the act continues to serve the needs of children and promote their rights and well-being.

       Eg. lower the age of consent to 16 as it was in the IPC prior to the POCSO Act. Based on the judgment of the Bombay high court, adolescents in the age group of 16-18 know about consensual sexual activity.

4. Improving data collection and analysis: Improving data collection and analysis, including through the establishment of a centralized database of reported cases, would help to better understand the extent of the problem and to identify areas for improvement in the legal process.

       Recently Madras High Court also has directed the National Crime Records Bureau to collect and analyze the data’s related to age of consent cases.