Age of consent in India 

Syllabus: GS2/ Government Policies & Interventions, Issues Arising out of their Design & Implementation.

In Context

• Recently, Bombay High Court stated that it is high time India considered reducing the age of consent for sex. 

Defining consent

• POCSO:
  • A ‘child’ under POCSO is defined as any person below the age of 18 years. 
  • Acts of penetrative sexual assault committed on children are criminal offences under POCSO. 
  • The purpose of defining ‘child’ under POCSO, and of the 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), is to safeguard children against penetrative sexual assault irrespective of their consent, which could even be unequivocal and voluntary. 
• IPC:
  • Otherwise, the third part of Section 90 of the IPC, which provides that consent is not consent “unless the contrary appears from the context, if it is given by a person who is under 12 years”, was sufficient to interpret consent for a child of any age.
• SC & ST Prevention of Atrocities Act:
  • According to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, if certain prohibited acts are committed with the knowledge of the caste of the victim, intention does not have to be proved separately.
  • The provision was made specifically to safeguard vulnerable groups. 
  • Similarly, if children are to be treated as a separate and vulnerable category, consent should be of no avail if the accused had knowledge of the victim being a child.

Opinion of Judiciary 

• About:
  • In the various cases, High Courts neither honoured the age of consent nor took any cognisance of the mandatory legal presumption in favour of the prosecutors. 
  • Even the difference between the age of the prosecutor and the age of the accused, which ranged up to 10 years, was not taken into account. 
  • Though there are recommendations from various sources to reduce the age of consent from 18 to 16 years, the case where the victim was 15 years was also not paid heed to.
• Bombay HC’s recent recommendation:
  • The court has 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. 
  • The Court recommended that the Indian government consider reducing the age of consent of the prosecutrix from 18 to 16 years. 
• Rationale behind court’s opinion:

• One of the reasons, for the reluctance of courts to convict accused persons in consensual sex cases could be the harsh minimum imprisonment, which is 10 years and 20 years for penetrative sexual assault and aggravated penetrative sexual assault, respectively. 
• Instead of proving to be a deterrent, this appears to be benefiting the accused. 

Isuses

• Burdon on Police forces:
  • None of the provisions of the IPC or POCSO has been declared unconstitutional by the courts. 
  • Therefore, quashing the cases of consensual sex may not lead to any less work for the police; they will still have to register FIRs whenever a child goes missing or a cognisable offence is reported either by parents or any other third party and proceed with their investigation.
• Evaluation of Increasing Minimum Age of Marriage: 
  • A parliamentary committee is looking into the Prohibition of Child Marriage (Amendment) Bill, 2021 which seeks to increase the minimum age of marriage for women to 21 years. 
  • Rights activists feel instead of helping the community, raising the age may force vulnerable women to remain under the yoke of family and social pressures.
• Socio-Legal Responses in India:
  • A study published by Partners for Law in Development in 2019.
  • The study noted that in many cases, a couple elopes fearing opposition from parents resulting in a situation where families file a case with the police, who then book the boy for rape under the POCSO Act and abduction with the intent to marry under IPC or the Prohibition of Child Marriage Act, 2006.
• Restrictions on freedom:
  • The study also records that while girls face restrictions on their mobility, premarital relations and sexuality, the same was not true for boys of the same social milieu who enjoyed greater freedom.

Suggestions

• Deciding on case to case basis:
  • The Bureau of Police Research and Development could analyse the cases of consensual sex (as has been directed by the Madras High Court), age-wise, across States and help the Central government in taking a decision of reducing the age of consent based on that study. 
• Reducing the age of consent: 
  • One solution could be to 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. 
  • The caveat of the ‘best interest of the child’ would be necessary.
• Role of apex court:
  • While reducing the age of consent is within the jurisdiction of Parliament, 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. 
  • This acquires importance in light of the Supreme Court judgment in Independent Thought v. Union of India (2017) wherein it held that even sexual intercourse with a minor wife is rape.

Way Ahead

• The government needs to look into the issue with the courts and rights activists seeking amendment to the age of consent criteria.
• In the meantime, adolescents have to be made aware of the stringent provisions of the POCSO Act and also the IPC. Even as activists are calling for a tweak to the POCSO Act, and raising awareness about its terms.