Don't be an Ostrich Over Age of Consent

The central government recently told the Supreme court that it has no intention to lower the age of consent from 18 to 16 years as it would make minors vulnerable to sexual abuse and trafficking under the garb of assent.

The government stand was in response to a public interest litigation and submissions by amicus curiae in the matter by advocate Indira Jaising seeking lowering the age of consent to decriminalise consensual sex between two adolescents under the Protection of Children from Sexual Offences (POCSO) Act.

Recent scientific researchers have found that adolescents are attaining puberty at a very early stage and understand what sexual relations lead to and their consequences.  The age of consent was 16 for eighty long years before the BJP government raised it to 18 years in 2013.

 Indira Jaising in her written submission says, “Increase in the age of consent violates the right to autonomy of children between the ages of 16 and 18 who have the ability to give mature consent to sexual activity.”

Indira Jaising, Senior Lawyer, Supreme Court

“Recent scientific research indicates that adolescents are attaining puberty sooner than they did several years ago and puberty as we know is the age of awakening of sexual awareness,” she said.

“It is the age during which there is a natural attraction between the sexes and the development of sexual relationships of choice. Hence to criminalise such an activity rather than addressing the issue of sex education is arbitrary, unconstitutional and against the best interests of children as defined in law,” she further submitted.

The facts on the age of consent are stacked in favour of allowing adolescents from 16 years onwards to have consensual sex. And many countries have recognised this and amended the laws to make them suitable to the changing thoughts over the age of consent.

The age of consent across the world is from twelve to eighteen. Most countries in Europe and 31 of 50 states in the US have fixed it at 16. The National Health and Family Survey-5 says that 45% of teenage girls in the age group of 15-19 have had sexual intercourse, but the government is not ready to see the writing on the wall.

Significantly, the NHFS data do not say whether this 45% of teenage girls are having sex while in marriage or out of it. So, the marriage or no marriage has no relevance to criminalising consensual sex among adolescents.

According to the National Crime Records Bureau’s report, ‘Crime in India 2021’ juveniles (those between the age of 16 and 18) apprehended under the POCSO Act have seen a rise of 180 per cent between 2017-2021. Criminalising underage sexuality accounts for 25 percent of total POCSO cases. The Amicus Curiae also pointed out that there have been several cases where romantic relationships between two adolescents were interpreted as crimes, resulting in their incarceration and harassment at the hands of police.

Criminal lawyer Asghar Khan is opposed to lowering the age of consent. “Whenever a law is enforced and is further made stricter it also starts getting misused. The POCSO Act was implemented to deal with sexual offences against children but the Act is being misused to punish the innocents which is wrong. In today’s time children are becoming aware of their sexual needs at an early age but still they are so young and immature to make big decisions in their life that reducing the age of consent would also not be a good idea. It is also true that most cases under POCSO are consensual,” he said.

“A significant number of cases registered under the POCSO Act are those situations in which girls leave their homes with romantic partners and those of consensual sexual activity between teenagers. These cases are registered by the parents of the girls who approach the police with a missing complaint,” Indira Jaising highlights in her submission.

“The POCSO Act was enacted to address the concern of growing sexual abuse against children but the recent studies have suggested that at least one-fourth cases decided by special courts under the Act are romantic cases and mostly involve adolescents. A 2022 study led by Enfold Proactive Health Trust examining 7,064 cases registered and disposed between 2016 and 2021 in the states of Assam, Maharashtra and West Bengal found that 24.3% of these cases constituted “romantic cases,” she mentioned in her submission.

A five-state study by the Centre for Child and the Law, National Law School of India University (CCL-NLSIU) revealed that ‘romantic’ cases constituted 21.2% of cases in Andhra Pradesh, 15.6% of cases in Assam, 21.5% of cases in Delhi, 21.8% of cases in three districts of Karnataka and 20.5% of cases in Maharashtra.

“Romantic relationships between teenagers are very common in today’s time. These teenagers are also so exposed towards social media and adult contents available online that you cannot stop them from watching such things. “Both girls and boys are becoming mature at an early age and becoming aware of their sexual desires at an early age, so I feel that the consenting age should be made 16,” said S.N. Pandey, senior government advocate for state of UP in Supreme court.

“For instance, if you keep a boy of 16 years of age among hardcore criminals in jail even if his relationship with the girl was consensual then imagine what impact will it have on his mind? Under the POCSO Act the court also cannot do much even if the relationship was consensual,” he added.

The aim of the POCSO Act is to protect minors from sexual abuse but the question is how the court will protect those minors who are in consensual relationship and yet they go through trial and face harassment by police and society. 

The centre is firm on its stand of not lowering the age of consent but in that case, it should also find a solution for protecting those minors who are in consensual relationships.

Secondly, sex education in schools is the need of the hour. Schools should promote sex education and open conversations on it. In the age of information overkill over all aspects of life, education, awareness and freedom is the only way out. Educate them, make them aware of pros and cons of early sex and then let them enjoy the autonomy to have their way.