The Law Commission released its 283rd report last week with the focus on ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012’. This is indeed a timely exposition into a fault line between the legislative intent and the real-life manifestations of the stringent laws around ‘age of consent’, i.e., the legal age to consent to sexual relations.
In India, the age of consent stands at 18 years, as enshrined in the Protection of Children from Sexual Offences (POCSO) Act, 2012.
However, over the past couple of years, ground reports, numerous court orders, and observations from higher judicial officers have revealed that such a stricture has caused widespread abuse of the law and resulted in overbroad criminalisation of adolescent sexuality.
In the report, the Commission rejects the feasibility of reducing the age of consent in India in anticipation of an increase in child marriages and trafficking as a direct consequence.
However, it does acknowledge that a blanket criminalisation of consensual sex, even between minors, can lead to the undermining of their agency and bodily autonomy and unjust tribulations.
Hence, the report captures:
One, the social reality of the prevalence of child marriages despite legal embargoes.
And second, the bitter truth about the misuse of a well-intentioned law. But where it stops short is in the mere diagnosis and does not delve into a resolution.
Evolution of Age of Consent in India
Before assessing the report’s implications, it may be opportune to recollect the evolution of the age of consent in India and the nuances that it encapsulates with regard to sexual autonomy.
The age of consent in India started out at merely 10 years old during colonial rule and, through successive amendments, ascended to 12. It later became 14, then 15, and finally 18 when the Prohibition of Child Marriage Act (PCMA) came into being in 2006.
The interlinkages between marriage and sexual consent is of utmost importance because in India marriage imparts a de facto right upon the husband to have sex with his wife.
However, it was not before the enactment of the POCSO Act that the emphasis on the age of consent, especially in the prosecution of rape cases, was laid down.
Through provisions like mandatory reporting and diluting consent of anyone under the age of 18, the POCSO Act established any sexual activity involving anyone under 18 years as “statutory rape."
Interestingly, the bill, when presented in the Lok Sabha, had 16 years as the age of consent but was revised in the Rajya Sabha following protests from members.
A Decade of the Diktat: Where Do We Stand Now?
It’s been over 10 years since the POCSO Act was enforced. In that context, a few facts need to be reckoned with.
Vidhi Centre for Legal Policy, an independent think tank in legal research, report – 'A Decade of POCSO' said, "One in every three POCSO cases ends in an acquittal, and in 48.66 percent of the cases, the accused was a friend or romantic partner of the survivor."
Similarly, a report by United Nations Population Fund (UNFPA), United Nations International Children's Emergency Fund (UNICF), and Enfold highlights that in 87.9 percent of the so-called ‘romantic’ cases, the victim herself admitted to being in a ‘consensual’ relationship with the accused.
This highlights that the POCSO Act is largely being weaponised to control the sexual autonomy of adolescents irrespective of whether they have attained sexual maturity.
The repositories of POCSO cases all over the country are surfeit with instances where the accused is in fact the chosen partner of a girl whom the family disapproves of, either on grounds of socio-economic or caste or religious differences.
In such cases, not only is the boy wrongfully criminalised but also the girl is forcefully victimised.
This yields two consequences:
Trauma of the trial sours the relationship between the adolescents.
And second, the stigmatisation often forces the parties to go into reclusion.
Moreover, the fear of law, forces teenagers to resort to unsanitary means of abortion in case of unwanted pregnancies.
Various benches of the different High Courts including the Karnataka High Court, Bombay High Court, Madhya Pradesh High Court, and even the Chief Justice himself have opined that the age of consent in its current all encompassing form can cause more harm than good.
The Law Commission’s Report: Intent & Impact
The report has observed:
“After a careful review of existing child protection laws, various judgments and considering the maladies of child abuse, child trafficking and child prostitution that plague our society, the Commission is of the measured view that it is not advisable to tinker with the existing age of consent under the POCSO Act.”283rd Law Commission Report
The Law Commission hinges upon the collaterality of potential increase in child marriages and trafficking if the age of consent is reduced.
However, it does provide a detailed caveat in delineating the different situations where the age of consent must be dealt with in discretionary manner.
Accepting the overwhelming number of cases where consensual relationships between adolescents are shackled by the systematic rigours of the POCSO Act, the report listed down two amendments to the Juvenile Justice (Care and Protection ) Act, 2015 and the POCSO Act on the following lines:
Where both parties are aged between 16 and 18, their case be dealt under the Juvenile Justice(JJ) Act instead of POCSO wherein section 18 of the JJ Act be amended to dispose of the cases through measures alternative to imprisonment.
Where one party is aged between 16 and 18 years and the other is an adult, the courts should exercise “guided judicial discretion” while dealing with the matter and through an amendment to the POCSO Act, less than minimum punishment be awarded wherever applicable.
The report also highlights that sexual maturity does not often align with maturity in decision-making and in the milieu of growing incidents of grooming, cyber crimes, sex-tortion etc. A reduction in the age of consent will provide a “safe harbour” for miscreants involved in trafficking, prostitution and even child marriages.
While the report does calibrate the broad implications of any reduction in the age of consent, it does not facilitate a resolution.
To begin with, age of consent for marriage and age of consent for sex are mutually exclusive and can remain so even if only the POCSO Act was to be amended.
This is also evinced by the fact that sex with one’s wife below the age of 18 years was criminalised only in 2017, a good decade after the enactment of the law prohibiting child marriage.
In fact, till date the consent of a wife remains legally irrelevant.
On the issue of trafficking, there is no place for consent.
Trafficking – be it for prostitution or slavery or bonded labour or organ extortion – is a heinous crime under Section 370 of the Indian Penal Code (IPC) and the provisions herein confer rigorous punishments, irrespective of the age of the victim.
Reducing the age of consent therefore need not aggravate the risks of early marriages or trafficking.
Moreover, while the report espouses “guided discretion”, the recommendation remains overbroad and vague in its lettering thus increasing the risks of contrary judicial positions in case of consensual adolescent sexuality.
The report, however, rightly observes that sexual maturity must be adequately paired with intellectual maturity.
So sensitisation and awareness of safe touch and consent as well as sexual and reproductive health must be conducted for young adults, debunking the taboos and myths that shroud the sexual knowledge of most teenagers in our country.
In the context of misappropriation of the POCSO Act to undermine agency of young adults or to further familial or personal vendetta and the glaring reality of prolonged trials which entails significant suffering even before one is pronounced guilty, the reports’ impassioned support to keeping the age of consent as is, will continue to guillotine consensual adolescent sexual relations and is likely to not do much in bridging the gaps in the current criminal law related to rape cases.
(Yashaswini Basu is a Bengaluru-based lawyer. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)