The age of majority for engaging in carnal activities without facing criminal prosecution by an individual has long been controversial. There are so many debates in today’s society between advocates and opponents for the age of consent while involved in sexual activities, with some arguing that the current limit fails to reflect the evolving maturity of adolescents. This article hunts through different cases, judgments, access to sexual education, and safeguarding young individuals by lowering the age of consent to 16.
In the recent legal landscape, as High Court of Maharashtra requests the center for reducing the age of consent while engaging in sexual activity to 16 from 18 by giving reasoning that due to easy access to the internet and social awareness, young individuals get the proper adolescence and knowledge at the age of 14 only.[1] And also, the CJI of India recommended the parliament look into the age of consent of the stringent act known as POCSO.[2]
However, the critics remain apprehensive, expressing the concern that young people may exploit and use coercion in relationships with an older partner, which may also increase the number of unacceptable incidents in society. Therefore, this article will focus on both sides of the argument, keeping in view the legal and cultural prospects, to bring up a balanced and comprehensive understanding of the issue.
Background
Across regions, there are different factors like social, cultural, and legal due to variations in the age of consent for carnal acts. Across many countries, the age of consent varies between 14 and 18, for instance, in European nations where the age of majority is in between 15 and 16 years. In the US, it varies among states, with ages ranging from 16 to 18 years.[3]
There are also different types of sexual activities, like heterosexual and homosexual relationships, with close age exemptions for minors in some countries. In some regions, there are significant variations in the age of consent based on the year’s difference between the partners involved, with younger ages of consent for partners who are closer in age.
Controversially, there are some countries where the consent age is very low, which also affects the protection of the child and has the potential for exploitation. It is essential to know that there are so many changes over a period depending on legislation and social factors. Therefore, it is essential to focus on the age of consent in a certain region.
The consent factor in India in the Pre-colonial era at that time, there was huge cultural diversification, due to which many local communities had their customs and practises regarding marriage and sexual relationships. This may also depend on caste, religion, and other different social factors. And after that, during British colonial rule, they introduced the Indian Penal Code of 1860, which deals with criminal offences in India. This age bar is set at 10 for consent, which is highly criticised by social reformers and activists who argue that it allows for the exploitation and abuse of young girls. After so much pressure from social activists and reformers like Raja Ram Mohan and others, the Age of Consent Act of 1891 was enacted, which increased the age of consent from 10 to 12 and criminalized sexual activity before the age of 12.
In 1925, under The Criminal Amendment Act of 1927, the age of consent was increased to 14 to provide more protection to girls from exploitation and abuse. And after gaining independence in 1947, the Indian legal system retained the age of 14. There are so many amendments and different issues, but the age of consent has been the same for decades.
In response to the growing increase in sexual abuse, India passed the Protection of Children from Sexual Offences Act (POCSO Act) in 2012, which fixed the age bar at 18 and is a very rigid and highly punishable law for convicts. In this act, consent before the age of 18 doesn’t matter; if there is sexual activity, then the individual is punishable.[4]
Protection of Children from Sexual Offences Act, 2012
POCSO is the most powerful instrument or act that safeguards children from sexual abuse and exploitation in India. It is a comprehensive provision related to children’s well-being and a written act to safeguard the child from sexual abuse. And mainly, it is gender neutral, which means no matter whether the offence is towards a boy or girl, it focuses on people under the age of 18. Let’s delve deeper into the key provisions and significance of this crucial legislation.
- Within 24 hours of reporting the case, police officers must present the case in front of the child welfare committee.
- Minor statements must be taken by the person wearing the plain cloth so as not to appear cowboyish. And only child-friendly locations should be chosen for taking the child’s statements and in front of the person whom the child trust.
- The medical examination for forensic tests should be done only by a female doctor in front of a person that he or she trusts.
- For the conduct of a speedy, in-camera trial, special courts should be formed. And courts must ensure that: minors should not be exposed while taking the evidence; the identity of the minor should not be disclosed; the case should be resolved within one year from the date it was reported.; and finally, compensation must be given to the sexually abused child for the medical treatments.
- Under this act, the consent factor is irrelevant to the minor, regardless of any circumstances. And providing false and misleading information makes the person libellous.
Prominent aspect of the act:
This gender-neutral act ensures that the legal framework for the sexually abused child treats all children equally without any distinction based on their gender. The act’s definition of a child avoids gender-specific language, promoting fairness and inclusivity in addressing cases of sexual abuse.
- Gender-neutral act: according to the definition of the child given in the act, it provides a gender-neutral tone for the legal framework available to the sexually abused child. This act doesn’t differentiate based on the gender of the child.
- Reporting of abuse: It mandates every person for whom there is knowledge of the sexual offence to report the case to the nearest police or the police unit of juveniles. The act not only punishes the offender but also punishes those who did not report the incident while knowing with imprisonment, a fine, or both.
This type of case doesn’t have any time limit for reporting; the sufferer can report the case anytime and anywhere, even after several years have passed since the incident. Thus, organizations can’t deny reporting such cases on the pretext of lapses of time.
- Victim’s identity: disclosure of the victim’s identity is restricted in media form Unless permitted by the special court under Section 23 of the POCSO Act.[5][6]
List of punishments under the POCSO Act
- Section 4: Penetrative Sexual Assault
The offender of penetrative sexual assault will be punished minimum of 7 years of imprisonment which may exceed life imprisonment and also be liable to pay a fine.
- Section 6: Aggravated Penetrative Sexual Assault
The offender of aggravated penetrative sexual assault will be punished with a rigorous imprisonment of not less than 10 years which may exceed life imprisonment and also be liable to pay a fine.
- Section 10: Aggravated Sexual Assault
The offender of aggravated sexual assault will be punished with at least 5 years of imprisonment, which may exceed 7 years, and liable to pay a fine.
- Section 12: Sexual Harassment
The offender of sexual harassment will be punished which may be extended to 3 years of imprisonment and also be liable to pay a fine.
- Section14(1) Using children for pornographic purpose
The person who uses the child for pornographic purposes should be punished with an imprisonment of 5 years and shall also be liable to pay a fine and for the second and subsequent conviction, the punishment may be extended to 7 years and also with a fine.
- SECTION 18: Attempting to commit an offence
Punishment: 1 year with/or fine.
7.(Section 17). Abetment of offence:
Instigating the offender for an offence makes the abettor punishable in the same way in which the offender is punished according to the offence.
8. Section 21: Failure to report an offence
Punishment: 6 months and/or a fine[7]
United Nations Convention ON THE Rights OF Children (CRC)
This CRC is an international treaty that binds nations to protect the rights of children.
Section 34 of the UN Convention on the Rights of the Child focuses mainly on the protection of children from all types of sexual abuse and exploitation. It wants the state to take proper measures to stop child exploitation, prosecute offenders, and provide support to victims.
And Section 35 of the CRC focuses on safeguarding against trafficking, abduction, and any other illegal activity involving children. It requires the government to take measures nationally and in collaboration with other countries to stop or reduce this type of exploitation of children.
This section mainly focuses on safeguarding child rights and ensuring a better lifestyle and proper well-being for the children.[8]
Major issues to be faced with reducing the age of consent
Reducing the age is a controversial topic, and there are a few drawbacks. Earlier, the age of consent was low, due to which there was a huge number of cases of child exploitation and abuse. Because of this, the age of consent was increased to 18, but again, reducing the age of consent is a matter of concern. and this will also create opportunities for predators and older individuals to take advantage of younger, less experienced partners, leading to coercion, manipulation, and abuse.
Reducing the age may also impact the child’s health. Additionally, it results in a rise in the occurrence of pregnancies and carnal transmission infections due to a lack of proper care and knowledge.
This will also raise the question of whether the consent is genuinely informed and enthusiastic or if it is misleading and coercive. And this will also create challenges in differentiating between rape and consensual sex.
This will also raise the concern of parents about involving their younger child in sexual activity and not having sufficient legal protection for the same.
Thus, these are some of the basic reasons for concern about reducing the age of consent for sex. This article will talk about some points of view expressed by different courts regarding reducing the age of consent.
- In November 2022, the High Court of Karnataka urged the Law Commission of India to reduce the age of consent to 16 in a case where the parents of a girl of 17 years filed a complaint of rape and kidnapping on a boy under IPC, 1860, and POCSO, 2012, with whom the daughter has eloped. And when she turned 18, they got married, and a session court acquitted the husband. The case was then heard by the HC of Karnataka. The judge’s opinion is that society has changed and that above the age of 16, boys and girls fall in love with each other, so above the age of 16, it should be considered.[9]
- In another case, Skhemborlang Suting v. State of Meghalaya (2021), a happy couple was living their lives, and when the girl reached the age of 17 years old, the husband took her to the hospital, where it was found that the girl was pregnant. Then Meghalaya high court dismissed the case, citing the rationale that the purpose of the law is to improve well-being and that it will affect the happy relationship of the family and the possible consequences of the wife having no support.[10]
- Recently, The Bombay High Court, while hearing a case of a boy charged with 10 years of imprisonment in prison for maintaining a consensual relationship with a minor girl, argued that most of the country has an age bar between 14 and 16 years, and India, after the implementation of the POCSO Act in 2012, the minimum age for consent for sexual activity of 18, which is the maximum in the world. It was also argued that the POCSO Act cannot stop natural feelings towards the opposite sex, particularly on account of the biological and psychological changes they go through, said single-judge bench justice Bharti Dangre. That’s why punishing a boy for being in a relationship with a minor girl would be against the interests of children. Dangre also mentioned that from 1940 to 2012, before the enactment of POCSO, the age bar was 16, which is considered justified.
The age of consent and the age of marriage are two distinct concepts. He argued that the sexual act can occur both within and outside the context of marriage and this fact should be acknowledged by both society and the judicial system. Lastly, he mentioned that if a boy is charged with rape with a minor in which the girl is also an equal participant, then he will suffer a severe dent that he will carry for a long time.[11]
In response, the government is not planning to change or revise the age from 18 to 16, as women and child development minister, Smriti Irani, said in Rajya Sabha answering the question of MP Binoy Vishram.[12]
Conclusion
The conclusion that can be drawn is that the age of consent for engaging in canal acts is highly controversial and complex. And at that age, adolescents have the proper maturity and cognitive ability to make informed choices about their sexual lives and understand sexual relationships. Some experts are in favour of this viewpoint that there is a need for change in the age of consent to 16 from 18 years.
On the other side, critics express concern related to the increase in exploitation and abuse involving older partners. And also, reducing the age of consent will increase the number of incidents and raise the question of free consent. Moreover, a decrease in age will increase the number of minor sexual acts, which will also lead to health issues and failure to provide proper well-being to the child.
It is also important to consider legal and cultural factors, which vary from region to region. Every country has different laws and cultures that have evolved to prevent and stop the exploitation and abuse of children.
Lastly, any decision related to the age of consent should be carefully taken into account, taking into account all different factors like the safety, health, and well-being of the children and safeguarding them from sexual abuse. Regardless of the age of consent, it is important to have comprehensive sexual education and a repressive legal system like POCSO to punish the offender and safeguard the interests of children.[13][14][15]
[1] ‘Injustice going on with adolescent boys’: MP High Court asks Centre to reduce the age of consent to 16 (2023a) The Indian Express.
[2] NewIndianXpress (2022) Review age of consent Dy Chandrachud to Parliament, TheNewIndianExpress
[3] Legal ages of consent by country (2023) Age of Consent Laws
[4] Ages of consent in Asia (2023) Wikipedia.
[5] POCSO Act (2023) Vikaspedia domains
[6] Protection of children from sexual offences act, 2012 (1970) India Code.
[7] Protection of children from sexual offences act, 2012 (1970) India Code
[8] Convention on the Rights of the Child, UNICEF
[9] Reconsidering the age of maturity under the POCSO: HC of Karnataka to Law Commission (2022) Hindustan Times.
[10] Editor_4 et al. (2022) Meghalaya High Court quashes POCSO charges against the man accused of having ‘consensual sex’ with minor wife, SCC Blog.
[11] High time india considers reducing the age of consent for SEX: HC (2023) Hindustan Times.
[12] Chandra, J. (2022) No plan to revise the age of consent, Centre tells Rajya Sabha, The Hindu
[13] Age of consent by country 2023.
[14] Protection of Children from Sexual Offenses Act. (2023, June 17). In Wikipedia
[15] Protection of children from sexual offences act, 2012 (1970a) India Code.
Author: Kumar Preet
Juris Centre 