Judge Bharati Dangre of the Bombay High Court recently expressed worry over cases under the POSCO[1], where there has been an upsurge in recent years in the number of men being arrested and having trials conducted under the POSCO Act, even when they are in mutually agreeable relationships. Adolescents expanded their own freedoms, choices, and boundaries, which were rights to individuals even guaranteed by Article 21[2] of the Indian Constitution as fundamental rights of every human being. In context, biological age and the legal definition of a consensual sexual connection are perceived as conflicting with one another. This led to a major discussion about whether the legal age of consent should be reduced under the POCSO, which stands for the “protection of children from sexual offences” that were pass and enacted by the parliament in 2012.[3] These statues implemented in the country as the special law over the Indian penal code for the safe guard younger children form the sexual offences. It’s over a decade since these statues had been implicated and on the major point to controversy over the age of the consent. According to dictionary ‘Age length of time during which a person has lived. The time at which one attains full personal rights and capacities. In law the term signifies those periods in the lives of persons of both sexes which enable them to do certain acts which, before they had arrived at those periods or they were prohibited from doing. See e.g. Age of consent’.[4] Age of the Adult, which varies across the statutes, such as the Labour Law defined as the 14.[5] In the case of POCSO Section 2(1)(d) of the Act, it states that “a child means any person below the age of eighteen years.[6] However recent developments and various other factors led to discussions that are elaborated further in the article.
Historical Background
The age of consent is the age at which a person considered legally capable of agreeing to marriage or sexual intercourse. A brief look back at history reveals that, up until 1860, the age of consent for women was at the age 10, which was still need to consider with that consider that child marriage was still common social practice on the Indian Sub-continent. Over time, this changed to 12 years by the Age of the Consent Act 1891[7], marked by the major turning point in British government history—the Phulmoni Case, in which an 11-year-old girl lost her life after her 35-year-old husband forced her to consummate their marriage.[8] Throughout time, the age was raised to 14 in 1925 and 16 in the year 1940.[9]
Age Of Consent
The Protection of Children from Sexual Offences Act of 2012 is one of the key statutes that presently defines the age of consent. While the age of consent for a girl child is 18 years old, there is no defined age of consent for men under the statute. Since there is no indication of a mutually agreeable physical relationship in this statue as well.
According to NCRB ( National Crime Record Bureau )data, there has been a recent increase in the number of POSCO cases in India. A rise in the consent age has led to an increase in “romantic relationship” cases that burden the criminal judicial system.
“As on 2019, this number stands close to a total of 1.5 lakh cases. There has been a year-on year rise of 10% in 2018 and 5% in 2019 in the number of overall crimes against children. The number increased from 1,29,032 cases in 2017 to 1,41,764 in 2018 which further increased to 1,48,185 in 2019. It is imperative to note that the increase in cases registered under POCSO Act has been much sharper than the overall crimes against children. POCSO cases increased 22% in 2018 and 19% in 2019. Cases registered under POCSO constituted 32% of the total crimes committed against children in 2019, with this number increasing to 47,335 cases in 2019. Uttar Pradesh and Maharashtra registered the highest number of cases under POCSO with 7,594 and 6,558 cases, respectively.”[10]
52% of POCSO cases nationwide involved victims who were in this age range of sixteen to eighteen year while In Maharashtra, 51% of POCSO Act cases had victims who were between the ages of sixteen and eighteen . Recently Mumbai court rulings for 2019 reveal that over 50% of the cases involved “romantic relationships,” with the bulk of the “victims” being between the ages of sixteen and eighteen.[11] These cases are primarily those involving 16 to 18 year-old Children , and the majority of these cases involve mutually agreeable relationships between young couples. However, the POSCO’s strict interpretation of Section 19 of POCSO as the compulsory registration of FIR[12] and the hard age of consent mean that family members frequently misuse these laws, exposing the defending party to challenges and harsh punishments, including 10 to 20 years in prison, at varying early ages that adversely affect their lives in many aspects and faced difficulty in many phase the
“Age of consent fixed by the POCSO Act is arbitrary, one would ask, what should it be set at. This is a difficult task. There are two factors that require to be kept in mind. Firstly, to allow sexual freedom to young, physically mature people; and to protect young, psychologically immature people from harm and exploitation”[13]
Former Supreme Court Justice Indiara Banerjee while observing case suggested that there need of Amendment and there should be exception is girl age is over 16 year. It is also need to under that POSCO object were never to criminalized the consensual sexual relationship among young people.
The National Family and Health Survey’s statistics accurately depict the situation on the ground: according to that (2015–16), 39% of females and 11% of girls had their first sexual experience before becoming 18 years old. 6.3% of women who married at the age of 18 or older said in the same poll that they had their first sexual experience before the age of 15.[14] The same note The Justice Verma Committee Report, interpreting Article 34 of the United Nations Convention on the Rights of the Child, recommended that the age of consent under the POSCO be reduced to sixteen years.[15]
While we track consent ages around the world, most of them fall between 13 and 16 years old. The lowest consent ages are observed in Nigeria, where they are 11 years old, in Niger, Burkina Faso, and Comoros, where they are 13 years old, and in other countries like Iran, Pakistan, Yemen, and Saudi Arabia, where marriage is not required and there is no consent age. And even nations like Bahrain and South Korea, whose minimum age requirements are far higher at 20 and 21, respectively. Furthermore, the majority of countries worldwide observe that the age of consent is between 15 and 16 years old, which is also the age that is most often acknowledged worldwide. One the data produced by UNICEF given 3 Recommdition The legal minimum age for sexual consent should be neither too low nor too high, and it should include rules that accommodate for the two individuals’ relatively small age differences – three years, for example. Laws should prevent criminalising consensual sexual conduct between minors, taking into account age differences and any power imbalances when establishing the validity of consent. Discriminatory provisions, particularly those based on gender and sexual orientation, should be abolished. [16]
As far as observation goes, it can be assumed that the age of consent needs to be lowered. The options that are possible in light of Indian circumstances include amending the law to protect children from sexual harassment and lowering the consent age at 16. However, since this also takes into account India’s social and educational conditions as well as the country’s youth’s awareness, this could be a riskier and harmful step for the country’s future generations.
How Is This Dissonance to Be Addressed
Considering several developed countries as an example, their legal age of consent is eighteen, with certain exceptions to that. Also referred to as the Romeo-Juliet clause, it states that a girl’s sexual relationship with another person who is less than four years older than she is would not be prosecuted as a criminal offence. In situations where the Romeo-Juliet clause may apply, it is appropriate for the court to consider the biosocial perspective while rendering a decision.[17] With the aid of these approaches, we may quickly transition from the hard law to the soft law, since the age at which consent is now rigidly enforced by Indian courts can move swiftly and gradually towards the soft age. These can be the perfect approach for a country like India, where it’s important to safeguard young people from sexual assaults and punish offenders in order to eliminate social evil from society while still allowing the younger population a certain freedom and space. Under some circumstances, the Romeo and Juliet provision may be amended to include the protection of children from sexual offences as an exception under Chapter II.
We attempt to clarify this by saying that the age of consent, which is strictly interpreted to be at 18, may have an exception clause. For example, if the girl is 16 years old, the law may be interpreted more leniently, and if the age difference between the young people is less than three or four, their relationship may be regarded romantic relationship and consider under Romia-Juillet clause. At the same time, we must recognise that change comes with a price. Giving freedom to the younger generation may cause other problems like unwanted pregnancy among young people, increase the risk of Sexually Transmitted Diseases (STD) like AIDS, HIV, Gonorrhoea, Syphilis, and many more. While lowering the age of consent, we also need to take steps to provide a better society for our future generation. These can include school education that provides sexual education, awareness camps, and many other programmes.
Law commission report Recommdition
Recently law commission of India in its report number 283 headed by the Justice Ratu Raj Awasthi while examining on age of consent under the protection of children from sexual offences stated that
“Adolescents in the age bracket of 16 to l8 years still remain children who ought to enjoy higher protection of law and the age of consent cannot be disturbed either by reducing it or introducing a limited exception.”[18]
The recommendation in the report can be summarised in the following manner: the age of consent should not be reduced; it should remain at 18 years and be a criminalised offence only. The change can be introduced so that if a child is over 16 years old and the court is satisfied that the relationship between children is consensual, a lower punishment can be granted. The report also gave certain conditions while applying these exceptions, such as that the age gap should not be more than 3 years, there should be no criminal record and good conduct, and many more. Also, the report displays its worry about marital rape under IPC Sections 375 and 376[19]. Even if a husband has a sexual relationship with his wife, who is less than 18 years old, it will amount to rape and need an amendment. Also recommend incorporating age-appropriate sex education into the school curriculum. [20]
As per the observation from the Recommdition made by the law commission report it need to pay attention that when there is age different between victim and accused is not more the 3 year it still and criminal offence only provision for the reduce sentences.
Conclusion
The Debate about the age of consent under the POSCO legislation reflects the contradictions between the legal framework placed on adolescent and romantic relationship among them. As it stands , it aims to protect minor under the age of 18 from the exploitation, but in the process, it is criminalised many of the consensual relationship in which adolescent Engage. The proposed “ Romeo and Juliet ” provision, which allowed alternative sentence to consensual relationship between an adult and a younger who is at most several year/month younger than the legal age, might provide such a remedy. This might be useful for resolving worries about adolescent vulnerability without eliminating components in senior adolescents.
Law Commission report stated that any modifications to the region should be considered. It is still critical to guarantee that strong legal frameworks for the minors remain rock solid. The report’s recommendation to keep the age of consent at 18, but given the option for less years of jail in select circumstances when the participants were under 18 but over 16, would address these concerns.
Finally, this issue should be tackled in a broad perspective and hence can be conclude that requires multi-sectorial solution for the same. Nevertheless, the legal reforms should be accompanied by other actions in the sphere of sex education , awareness of sexual rights and changes in adolescents’ cultural attitudes. As can be seen, India faces this rather intricate question and still the objective must remain to provide the children with necessary legal protection while at the same time taking into consideration maturing years and relationships.
[1] Times Of India, https://timesofindia.indiatimes.com/city/mumbai/hc-says-must-review-age-of-consent-acquits- 25-yr-old/articleshow/101740418.cms?from=mdr ( last visited June 17,2024 ).
[2] INDIA CONST. art. 21.
[3] Protection of children from sexual offence Act,2012.
[4] Black’s law Dictionary (Bryan A. Garner ed., 6th ed. 1990).
[5] Child Labour (Prohibition & Regulation) Amendment Act, 2016.
[6] Protection of children from sexual offence Act,2012. § 2(1)(d).
[7] Age of consent act, 1891.
[8] Yasmine Arya & Bhaskar Vira, The Controversial Debates on the Age of Consent and Child Marriage in India, Childhood in South Asia, 109–127( 2022 ).
[9] Permanent Black, Hindu Wife, Hindu Nation: Community, Religion, and Cultural Nationalism (2001).
[10] National Crime Records Bureau, Report on Crimes against Children. ( 2019 ).
[11] SCC Online , https://www.scconline.com/blog/post/2023/03/12/age-of-consent-under-the-pocso-act/ ( last visited June 22, 2024 )
[12] Protection of children from sexual offence Act,2012, § 19.
[13] Graupner, H.J.D., & Bullough, ., Adolescence, sexuality, and the criminal law : Multidisciplinary perspectives Haworth Press , London (2004).
[14] The Justice Verma Committee was constituted by the Government of India “to review the present Laws so as to provide for speedier justice and enhanced punishment in cases of aggravated sexual assault, the Ministry of Home Affairs, Government of India,2013.
[15] Id.
[16] The United Nations International Childers’s Emergency Fund, https://www.unicef.org/(last visited June 24, 2024).
[17] Zalkind & Simon, The Criminalization of the Norm: Romeo and Juliet Make the Transition to Adulthood. Journal of Juvenile Law, 25, 1-23(2004).
[18] The law commission Report no. 283, examining on age of consent under the protection of children from sexual offences (2023).
[19] PEN. CODE. § 375 &376.
[20] Id.
Author: Virta Godhani
Juris Centre 