Age of consent: Explained, pointwise

Introduction

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 criminalisation of adolescent sex, the 22nd Law Commission of India is set to release its report on the minimum age of consent under the POCSO Act. These developments have revived the debate about the revision of the age of consent in India.

What is age 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 POCSO Act.

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

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

What are the salient features of POCSO Act?

The POCSO Act was passed in 2012. The Act was further amended in 2019 to introduce more stringent punishments, including the death penalty, for committing sexual crimes against children. This was done to deter perpetrators and prevent such crimes.

Following are the salient features of the Act:

1. “Children” according to the Act are individuals aged below 18 years. The Act is gender-neutral.
2. The Act defines different forms of sexual abuse including but not limited to sexual harassment, pornography, and penetrative & non-penetrative assault.
3. The Act stipulates that such steps must be taken which makes the investigation process as child-friendly as possible and the case is disposed of within one year from the date of reporting of the offense.
4. The Act provides for the establishment of Special Courts for the trial of such offenses and matters related to them.
5. Section 42 A of the Act provides that in case of inconsistency with provisions of any other law, the POCSO Act shall override such provisions.
6. The Act calls for mandatory reporting of sexual offenses. A false complaint with intent to defame a person is punishable under the Act.

Read more: What is the POCSO Act?

What are the judgements of various High Courts?

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 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 below the age of 18 years from sexual exploitation and not to criminalise romantic relationships between consenting young adults.

In Dharmendra Singh v State Govt of NCT (2020), the Delhi High Court has attempted to increase the chances of bail of an accused by issuing guidelines that pertain to close-in-age exemptions, available in statutory rape cases in most US states. Also known as the Romeo-Juliet law, it provides a degree of protection to the offender where the age difference between him and the victim is within the stipulated limit.

A bench of Karnataka High Court urged the Law Commission of India to have a rethink on the criteria for age of consent, taking into consideration the ground realities.

Recent judgements

1. The Delhi High Court released a 25-year-old accused on bail on the premise that the 15-year-old girl had eloped with him on her own.
2. The Bombay High Court quashed the conviction of a 25-year-old man under POCSO on the grounds that he had consensual sex with the 17-year-old girl.
3. The Madras High Court not only quashed an FIR registered under POCSO and consequential criminal proceedings, but also directed the Director General of Police to produce the reports of all such pending cases before the Court.
4. The Madhya Pradesh High Court quashed an FIR registered under POCSO and all criminal proceedings on the basis that the sexual relationship was consensual. The Court recommended that the Indian government consider reducing the age of consent of the female prosecutor from 18 to 16 years.

What are the issues with current age of consent?

Tool to control girls: An analysis of romantic relationships from Assam, Maharashtra and West Bengal revealed that in 80% of cases, the girls’ family lodged a complaint under POCSO when she had eloped with a partner or a pregnancy came to light. At least 17 High Courts across the country have quashed cases of consensual relationships under POCSO Act. Women’s rights activists claim that the POCSO Act has become a tool for families to control girls, especially where inter-faith and inter-caste relationships are involved.

Victimisation of the “consenting” girl: POCSO, Medical Termination of Pregnancy act and the Child Marriage Act create a complex socio-legal web. This deprives the minor girl of the rights to dignity, liberty, sexual and reproductive health, and undermines her privacy.

Ignores social reality: The criminalization of adolescent sexuality ignores social reality. According to the NFHS-5, for instance, 39 per cent women had their first sexual experience before turning 18. NFHS-5 also provides additional evidence of sexual engagement among unmarried adolescent girls. It reports contraception use by 45 per cent of unmarried girls in the age group of 15-19 years.

Burden on courts: The number of juveniles (especially those between the ages of 16 and 18) apprehended under the POCSO Act in the country has seen a staggering jump of 180 per cent between 2017- 2021 according to the National Crime Records Bureau’s report. The data says that in 2021, 53,873 cases were filed under the Act, and these cases formed 36 per cent of all crimes against children. Officials and activists say that slapping Pocso cases on cases of adolescent love affairs is clogging the system, which already has too many pending cases to deal with.

What should be the way forward?

There is need to evolve a separate procedure for children while dealing with POCSO cases.

The Bureau of Police Research and Development could analyse the cases of consensual sex, age-wise, across States and help the Central government in taking a decision of reducing the age of consent based on that study.

Some leverage should be allowed to the judiciary to interpret consent in cases of the victim being of lower age based on the child’s understanding of consequences.

The Supreme Court must step in to quickly resolve the gap between the laid down law (as understood by the investigating agencies) and the different interpretations by the High Courts.

The severe punishments under POCSO should be re-examined to ensure that they are deterrents but not excessively harsh.

Conclusion

The courts have rightly said that it is high time the legislature looked into the grey area resulting in criminalising consensual teenage relationships, by reducing the age of consent from 18 to 16 years. This will ensure reforms and access to sexual and reproductive health services to adolescents, along with comprehensive sex education to help them make informed decisions.

Sources: The Hindu (Article 1 and Article 2)