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.