In late July, senior lawyer Indira Jaising argued in the Supreme Court about the legal age of consensual sex in India (which is currently 18 years).
With this debate, the discussion on the issue of considering sex between teenagers as a crime has again intensified.
Jaising says that consensual sex between teenagers aged 16 to 18 is neither exploitation nor oppression. He says that such cases should be kept out of the scope of criminal cases.
In his written argument, he said, “The purpose of age-based laws should be to protect children from exploitation, and not to consider consensual and age-appropriate relationships as crimes.”
But the central government is opposing this demand. It says that if such an exception is approved, then the risk of exploitation and oppression of children below 18 years of age, who are considered minors in Indian law, will increase further.
This case is starting a new debate on the definition of consent. The question is whether Indian laws, especially the POCSO Act of 2012, should be amended to keep consensual relationships between teenagers aged 16 to 18 years out of the scope of this law.
What is the opinion of experts
Child rights activists say that if teenagers are kept out of this scope, their freedom remains intact. On the other hand, those who oppose it believe that doing so can increase crimes like human trafficking and child marriage.
Experts also raise the question that if a teenager is tortured, will he be able to bear the burden of proof. The most important question is who should have the right to decide the age of consent and who gets the real benefit of these laws.
Like many countries of the world, India too has had difficulty in deciding the right age of ‘consensual sex’. In America, this age varies in different states, whereas in India it has been kept the same for the whole country.
In India, the legal age of consent for sex is much higher than in most European countries and countries like Britain and Canada. In these countries, this age is 16 years.
When India’s criminal law came into force in 1860, this age was 10 years. In 1940, it was amended to 16 years.
The POCSO Act brought the next major change and in 2012, the age of consent was raised to 18 years. After this, it was included in the criminal laws by making changes in 2013 and this age was continued in the new criminal law implemented in 2024.
In the last decade or so, many child rights activists and courts have questioned the legal age of consent and have demanded to increase it to 16 years.
They argue that the current law considers consensual teenage relationships a crime. Many times adults use this law to stop or suppress such relationships, especially in the case of girls.
The topic of sex is still not considered something to be discussed openly in the country, even though several studies have revealed that millions of Indian teenagers are sexually active.
Sharmila Raje, co-founder of the Foundation for Child Protection-Muskan, says, “We live in a society that is divided on the basis of caste, class and religion. This is the reason why the risk of misuse of the law related to age of consent increases.”
Karnataka High Court’s direction in 2022
In 2022, the Karnataka High Court directed the Law Commission of India, which recommends legal reforms, to reconsider the age of consent under the POCSO Act “to take into account the ground realities.”
The court had cited several cases where girls above the age of 16 fell in love and had sex, but the boy was later charged with rape and kidnapping under POCSO and the criminal law.
The next year, the Law Commission in its report refused to reduce the age, but recommended that courts use “judicial discretion” while deciding punishment for consensual relationships between 16 and 18-year-olds.
Though this recommendation has not yet been legalised, courts across the country are using this principle in decisions such as hearing appeals, granting bail, acquitting or dismissing some cases. In this, they take into account the facts of the case and the testimony of the victim.
Several child rights activists, including Sharmila Raje, have been demanding that this provision be incorporated into the law to ensure uniformity in its use. If it is left as a mere suggestion, the courts may ignore it.
In April, the Madras High Court overturned an acquittal in a case in which the 17-year-old girl was in a relationship with a 23-year-old accused and when her parents arranged her marriage to someone else, she left her home with the accused. The court sentenced the accused to 10 years in prison.
Shruti Ramakrishnan, a researcher at Enfold Practical Health Trust (a child rights organisation), wrote in the Indian Express newspaper, “The court applied the POCSO Act literally,” and called it a “serious failure of justice.”
“For many, the entire process is punishment”
Jaising argues that exercising judicial discretion while sentencing is not enough, as the accused still has to go through a lengthy investigation and trial process.
India’s judicial system is known for its slow functioning, with lakhs of cases pending at every level. According to a research report by the India Child Protection Fund, by January 2023, about 2.5 lakh cases were pending in special courts set up to hear POCSO cases alone.
Jaising says, “For many, the entire process becomes punishment”
She adds, “Leaving it to judges to look at each case separately is also not the right solution, as this can lead to disparity in decisions and the possibility of bias is also ignored.”
Lawyer and child rights activist Bhuvan Ribhu says that if such exceptions are approved unconditionally, it can be misused in cases like kidnapping, human trafficking and child marriage. He advocates judicial discretion as well as reforms in the justice system.
He says, “We need a system in which cases are resolved within the stipulated time. Along with this, there should also be better rehabilitation facilities and compensation for the victims.”
However, Enakshi Ganguly, co-founder of ‘Haq: Center for Child Rights’, is in favor of Indira Jaising.
She says, “We cannot avoid change just because we fear that the law will be misused.”
She says that Jaising’s argument is not new, in the past several years many activists and experts have given such suggestions before.
Ganguly says, “If the law has to be kept effective and relevant, then it will have to keep pace with the changes taking place in society.”
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