The age of giving consent to engage in sexual acts is a matter of great importance as it plays a pivotal part in determining the nature of the relationship. The Chief Justice of India, Dr D.Y. Chandrachud, at the inaugural two-day session of the National Stakeholders Consultation on the Protection of Children from Sexual Offences, Act, 20121 (POCSO Act)2 addressed the issue of age of consent and various difficulties being faced by Judges of trial and appellate courts in examining cases of consensual sex among adolescents.
Since its enactment in 2012, the primary objective of the POCSO Act has been to safeguard minors from offences of sexual abuse and exploitation and provides for severe punishment for any person who is found guilty of committing sexual offences against children. The Act defines a child as any person below the age of 18 years. The consent of a “child” is immaterial and consensual sexual intercourse with or among adolescents is treated on a par with rape.
However, in recent years, there have been calls for reconsideration of the age limit under the Act due to the increasing number of cases of sexual offences between the age group of 16-18. Many experts argue that the age limit of 18 years is too low, and that it fails to take into account the complexities of adolescent relationships. Mostly cases under the POCSO Act are of romantic relationships between an adult and an adolescent which given a colour of sexual offence to punish the boy by families of the girl.
Enfold Proactive Health Trust, an NGO based in Bengaluru, conducted a study with UNICEF (United Nations International Children’s Emergency Fund) India and UNFPA3 (United Nations Population Fund), analysing 1715 such “romantic cases” registered under the POCSO Act in Assam, Maharashtra, and West Bengal between the year 2016-2020. The study revealed that “romantic cases” accounted for 24.3 per cent of all POCSO cases between 2016 till 2020, and 80.2 per cent of these cases were filed by parents and relatives of the girl.
In numerous cases, a couple elopes fearing opposition from parents resulting in a situation where families file a case, for which the police book the boy for rape under the POCSO Act and abduction with the intent to marry under the Penal Code (IPC), 18604 or the Prohibition of Child Marriage Act, 20065. In such scenarios, the consent of the girl (if under 18 years of age) becomes invalid, and the boy is branded as a criminal regardless of the fact that the relationship might have been a mutually consented one. Such instances demonstrate the ineffectiveness of the courts in being able to differentiate between genuine cases which results in miscarriage of justice as it not only ruins the life of the accused but also hampers the mental growth of adolescents by treating them as children incapable of making decisions on their own.
The Karnataka High Court has directed the Law Commission of India to reconsider the age of consent under the POCSO Act. A Division Bench consisting of Suraj Govindaraj and G. Basavaraja, JJ. of the Karnataka High Court in a judgment passed on 5-11-20226 observed that there are several cases relating to minor girls above 16 years having fallen in love and eloped which results in having sexual intercourse with the boy and opined that the Law Commission of India should rethink on the age criteria, so as to take into consideration the ground realities.7
Such offences are slapped against teenagers, who fall victim to the application of the POCSO Act at a young age without understanding the severity of the enactment. It impacts the delivery justice system as these cases constitute a large burden on our courts and divert attention from investigation and prosecution of actual cases of child sexual abuse and exploitation.
In Ajay Kumar v. State (NCT of Delhi)8, the Delhi High Court stated that the intention of the POCSO Act was to protect children below the age of 18 years from sexual exploitation and not to criminalise romantic relationships between consenting young adults.
Various High Courts of India have advised the legislature to amend the age of consent and some step ahead further by sidestepping the law and recognising the consent of adolescents. This, itself, demonstrates the willingness of the courts to evolve with time and adapt as per society’s growing needs so as to effectively administer justice. There are many instances where the courts have granted bail to the accused on ground of romantic relationships.
The high rate of acquittals under the POCSO Act shows that the law is not in sync with the social realities of adolescent relationships. The legal aspects of teenage sexuality have undergone several changes since colonial times. The law disregards the likelihood of a minor girl engaging in sexual activity voluntarily. But as per the survey conducted by National Family Health Survey (NFHS-5), 39 per cent of women had their first sexual experience before turning 18 years of age.9
Many countries like Japan, which has the legal age of consent set to be 13 years of age, and where Germany, Austria, Italy, Hungary, and Portugal have their legal age of consent set to be 14 years of age. The basic difference between countries like these and India is that they acknowledge the fact that adolescents are indeed capable of taking decisions for themselves as per their judgment of what is good for them. India’s tendency to underestimate the decision-making prowess of adolescents and their subsequent refusal to teach children about “subjects inappropriate for their age” results in young adults who often fall victim, either to an unjust law or to unspeakable evil.
The legal age at which a person is considered able to make decisions is not similar to the actual age at which an adolescent becomes able to make decisions for them. This drift between the two causes friction which ends up in gross injustice. It is unfair to criminalise them for their actions, particularly if they are engaged in a consensual relationship with another minor.
There is a growing need to reconsider the age limit under the POCSO Act, particularly in cases involving romantic relationships between minors. This would ensure that minors are not criminalised for adolescent behaviour and they are not subjected to the trauma and stigma of being charged with sexual offences. A more nuanced approach that takes into account the complexities of adolescent relationships is needed, in order to provide adequate protection for the children while ensuring that they are not unfairly criminalised.
† Advocate, Supreme Court of India. Author can be reached at harshsinghmunday@gmail.com.
†† Advocate, Supreme Court of India.
1. Dishha Bagchi, “‘Prioritise Interest of Child Over So-Called Honour’ — CJI Takes Stock of POCSO, its Implementation”, The Print, available at <https://theprint.in/judiciary/prioritise-interest-of-child-over-so-called-honour-cji-takes-stock-of-pocso-its-implementation/1259320/> last visited on 18-2-2023.
2. Protection of Children from Sexual Offences Act, 2012.
3. “‘Romantic’ Cases under the POCSO Act: An Analysis of Judgments of Special Courts in Assam, Maharashtra & West Bengal”, Enfold Proactive Health Trust with support from UNICEF – India, June 2022, available at <http://enfoldindia.org/wp-content/uploads/2022/12/Romantic-cases-under-the-POCSO-Act.pdf> last visited on 18-2-2023.
5. Prohibition of Child Marriage Act, 2006.
7. “HC Says Law Commission Needs to Rethink Age Criteria for Consensual Sex”, The Hindu, available at <https://www.thehindu.com/news/national/karnataka/hc-says-law-commission-needs-to-rethink-age-criteria-for-consensual-sex/article66107625.ece> last visited on 18-2-2023.
9. National Family and Health Survey-5 at p. 210, available at <http://rchiips.org/nfhs/NFHS-5Reports/NFHS-5_INDIA_REPORT.pdf> last visited on 18-2-2023.
