The Bombay High Court recently held that the minimum age of consent for sexual relations, currently fixed as 18 years under the Protection of Children from Sexual Offences Act (POCSO Act) and the Indian Penal Code, should be re-examined. The High Court reversed the conviction of a 25-year-old man for the rape of a girl aged 17 years and five months, noting that the “criminalisation of romantic relationship” had overburdened the criminal justice system by consuming significant time of the judiciary, police and the child protection system.
Justice Bharati H Dangre pointed out that even if a boy aged 20 indulged with a girl aged 17 years and 364 days, he would be held guilty of rape, although the girl had willingly taken part in the act. The judge cited the examples of Germany, Italy, Portugal and Hungary, where the age of consent was 14, of England and Wales, where it was 16, and Japan, where it was 13. She also cited examples of the countries in the neighbourhood of India. In Bangladesh, Section 9(1) of the Women and Child Abuse Prevention Act, 2000 defines ‘rape’ as sexual intercourse with a woman, with or without her consent, when she is below 16 years of age. Similarly, in Sri Lanka, the age of consent is 16.
She left it to Parliament to ponder upon the issue.
The Madhya Pradesh High Court also made a similar observation recently. The court said that the Criminal Law (Amendment) Act, 2013 which raised the age had “disturbed the fabric of society” resulting in “injustice with adolescent boys”. The Delhi High Court last year said that the intention behind the POCSO Act was to protect children from sexual exploitation and that it was never meant to criminalise consensual romantic relationships between young adults.
Eminent criminal lawyer and senior advocate Sidharth Luthra said that while the POCSO Act was a welcome move to curb crimes against children, it had created a class of accused, who, having engaged in consensual intimacy, faced jail and criminal sanctions. Indian youths in the past few decades got exposed to and now have easy access to mature content on the Internet. Their awareness of themselves, their bodies and hormonal drives lead to experimentation and that attracts the rigours of the law, he said.
“In my view, this necessitates a sensitive legislative relook at 18 as the age of consent, to protect innocent minors while balancing the laws to protect them. The purpose of the age fixation at 18 was to protect children from predators and not criminalise them by the very laws made to protect them,” he said.
Delivering the keynote address at the National Annual Stakeholders Consultation on Child Protection last year, Chief Justice of India, D Y Chandrachud, had asked lawmakers to address the “growing concern” regarding the criminalisation of adolescents who engage in consensual sexual activity.
The 22nd Law Commission has recently initiated discussions on the age of consent in India, as it has been recorded as one of the highest. Most of the countries have set it in the range of 14 to 16 years.
The age of consent remained at 16 years from 1940 till 2012, when POCSO Act raised it to 18.
In November 2022, the Karnataka High Court asked the Law Commission of India to reconsider the age of consent in the POCSO Act in view of ground realities.
It noted several cases of elopement resulting in the criminal prosecution of a minor boy, who would attain majority by the time case reached the stage of the trial.
“Many a time the boy and girl involved are either closely related and/or very well known to each other being classmates or otherwise. One thing leads to the other and being of an impressionable age, some things are done by a boy and girl, which ought not to have been done and done without knowing the applicability of the POCSO Act or certain provisions of the IPC, which make them an offence," it pointed out.
Former Delhi HC judge, Justice R S Sodhi, said, "Law must also move with the society. We can't keep with stagnate society and keep putting youngsters in jails. I am of the opinion that these things should be constantly studied and upgraded”.
It is the time lawmakers should see it as a wake-up call to bring about the change no sooner than later, in the spirit of striking a balance between protecting children and respecting the autonomy of young adults.