Will the age of consent decrease in India, why does the Chief Justice of India want this, know the paradox related to Age Of Consent

What should be the age of consent for sex in India, it is once again in headlines after Chief Justice of India DY Chandrachud’s latest statement regarding the POCSO Act.

The Chief Justice of India has said that the age of consent under the Protection of Children from Sexual Offenses Act (POCSO Act) is 18 years and this raises difficult questions for judges dealing with such cases. He believes that in view of the increasing concern on this issue, there is a need to consider the legislature ie the Parliament.

Difficult questions before the judges during the hearing

The Chief Justice has expressed concern over the problems being faced by including consensual romantic relationships under the purview of the POCSO Act. The Chief Justice believes that the age of consent fixed by the POCSO Act should be looked into by the Parliament. The Chief Justice said these things on December 10 in a program organized by the Supreme Court Committee on POCSO Act in Delhi in collaboration with UNICEF. It has been 10 years since this law was made. Due to the age of consent in front of the judges, many problems are coming in the disposal of the cases related to it.

The age of consent was raised from 16 to 18 in 2012

In fact, through the POCSO Act, 2012, the age of consent in the country was increased from 16 to 18 years. On cases involving consenting minors indulging in sexual activity, the Chief Justice said that any kind of sexual activity between minors is an offense under the POCSO Act, even if there is consent between the minors. The presumption of this law is that consent given for sex between people below the age of 18 years, will not be considered consent.

Courts in favor of lowering the age of consent

A few days ago, former Supreme Court Justice Madan B. Lokur also said that 17-year-old boys and girls involved in a relationship know what they are doing and are also aware of its consequences. That’s why it is not right to prosecute them. Recently, the Madras High Court had also pointed out the need to consider the age of consent under the POCSO Act to properly deal with cases involving love affairs between teenagers.

The Delhi High Court is also of the view that the purpose of the POCSO Act is to protect children from sexual exploitation and not to criminalize consensual romantic relationships. The Hubli-Dharwad Bench of the Karnataka High Court has also appealed to the Law Commission on November 5 that the norms of age of consent should be reconsidered in view of the ground reality.

There are many aspects related to the age of consent.

Actually, the issues that Chief Justice DY Chandrachud is worried about are related to our social environment. In the era of changing times and technology, attraction and romantic relationships between boys and girls under the age of 18 are common. Incidents of consensual sex also come to the fore between them, but due to the age of consent, they come under the category of crime and many questions arise in front of the judges while giving verdict in these cases.

Law to protect children from sexual abuse

The full name of the POCSO Act 2012 is The Protection Of Children From Sexual Offenses Act, 2012. The bill related to this law was passed by the Rajya Sabha on 10 May and the Lok Sabha on 22 May 2012. This law came into force from 14 November 2012. In this, every person below 18 years has been considered as a child. With this provision, the age of consent in India has been increased from 16 years to 18 years.

This law made any kind of sexual activity a crime for people under the age of 18, even if it was consensual. The provision related to the child in the POCSO Act made it necessary for the courts to explain the age of consent. Since 1940, the age of consent in India was 16 years. Under the POCSO law, it is a serious crime not to report sexual abuse of children despite the knowledge of every citizen including doctor, hospital, school staff and parents.

After 2013, the debate on reducing age intensified

After the Nirbhaya rape case in Delhi in December 2012, the Justice JS Verma Committee gave recommendations related to making the sexual harassment law stricter. After this, the Criminal Law (Amendment) Act, 2013 was made by the Parliament. In this, the age of consent for the Indian Penal Code (IPC) was also increased from 16 to 18 years. After these two laws, there is continuous discussion about the age of consent in the country.

Applicable to both boys and girls since 2012

Before 2012, the age of consent for girls was 16 years under section 375 of the Indian Penal Code. With the POCSO Act of 2012, this age limit has been increased for both boys and girls. It is worth noting here that before POCSO the age of consent was defined only from the point of view of girls. Now applicable to both boys and girls.

In 1860 the age of consent was 10 years

For the first time in India during the British rule, 10 years was considered as the age of consent in the Indian Penal Code of 1860. It was created by Thomas Babington Macaulay. Marital rape was considered a crime in the IPC at that time only when the wife was below the age of consent i.e. less than 10 years.

In 1889, a 10-11 year old Bengali girl dies due to forced sexual intercourse by her many years elder husband. After this, with the efforts of Parsi social reformer V.M. Malabari, the British government amended the IPC to increase the age of consent from 10 to 12 years for all girls in India, whether married or unmarried. The age of consent was raised to 14 years by amending the IPC in 1925. However, the age of consent for girls in matrimonial relations was reduced by one year to 13 years.

The age of consent was raised to 16 in 1940

Due to the hard work of social reformer Har Vilas Sharda, Child Marriage Prevention Act was enacted in 1929. Through this, the minimum age of marriage for girls in India was raised to 14 years and for men to 18 years. The age of consent for girls in matrimonial relations remained at 13 years. In 1940, by amending the IPC and Child Marriage Prevention Act, the age of consent for girls was raised to 16 years. However, in 1978 the minimum age of marriage was raised to 18 years for girls and 21 years for boys. Even at this time, the age of consent for girls was only 16 years, but for girls in matrimonial relations, this age was kept at 15 years. Till 2012, the age of consent remained 16 years.

The issue of sexual activity among teenagers is very sensitive

In general, people shy away from talking about this issue in the society, but it is also a fact that interest among teenagers is not a new thing. People may keep silence on the issue of sex before marriage, but statistics show that boys and girls below 18 years of age are active in sexual activity.

According to the National Family Health Survey NFHS-4 (2015–16) records, 11% of girls had first sexual intercourse before the age of 15 and 39% before the age of 18. UNICEF estimates that 10-12% of adolescents in low- and middle-income countries have had sex before the age of 15.

Big hand of love affairs in cases registered under POCSO

At present, having sex with a minor girl even with her consent comes under the category of rape. Age of consent increased. There has been a change in the law, but the ground reality tells something else. A study shows that one out of four cases filed under the POCSO Act is related to romantic relationships. The acquittal rate among them is 93.8%.

In most cases related to romantic affairs, the accused are acquitted

Bengaluru-based NGO Unfold Proactive Health Trust, along with UNICEF India and UNFPA, had conducted a study on cases registered under the POCSO Act. It analyzed 1,715 such “romantic cases” registered under the POCSO Act in Assam, Maharashtra and West Bengal. All these cases were between 2016-2020. During this period, 24.3 percent of the cases registered were related to romantic matters. Of these, 80 percent cases were lodged by the parents or relatives of the girls.

It has been said that minor boys and girls go away from home with consent with the intention of marriage and later the parents of the girls get cases registered against the boys under the POCSO Act. In about 86 percent of these cases, the girls have admitted to having consensual relations with the accused. In about 62 per cent of the cases, the courts have also accepted that the relationship was consensual. In such cases, 93.8% of the accused have been acquitted by the courts. On an average, these accused were acquitted by the court within one and a half to two and a half years of the registration of the FIR.

Awkward situations in front of the court at times

The high probability of acquittal in such cases can be said that the POCSO law is not in harmony with the reality of relationships between juveniles. Different High Courts have also accepted the fatal effect of this law in such cases. In many registered cases, due to the marriage between the two parties during the hearing, the courts also have to cancel the cases registered under the POCSO Act.

In adolescence, consensual sexual activity seems normal to them and every such relationship does not lead to marriage. Those seeking to lower the age of consent argue that criminalizing consensual sexual activity among 17-18-year-olds infringes on their dignity, freedom, privacy, and stunts their potential for development.

Impact on investigation and trial of genuine cases

Such cases also affect the judicial system. The burden on the courts increases. There is not enough focus on investigation and trial of genuine cases of child sexual abuse or there is delay in such cases.

60% of cases related to love affairs in Tamil Nadu

Last week, a joint committee study by the Tamil Nadu Juvenile Justice Committee and the Police Department found that 60% of cases registered under the POCSO Act in Tamil Nadu were related to love affairs. It has also been said that the POCSO law has had an impact on tribal communities, where marriage under the age of 18 is not prohibited.

POCSO is not stopping sexual abuse of children

It is also a fact that despite the law, boys and girls under the age of 18 are facing sexual exploitation. If there was only fear of law, then such cases would have been very less. In August this year, according to information given to Parliament by Women and Child Development Minister Smriti Irani, 47,324 cases were registered in 2019 and 47,221 in 2020 under the POCSO Act.

Data from the National Crime Records Bureau (NCRB) shows that in 2021, 53,873 cases were registered under the POCSO Act. These cases account for 36% of all crimes against children. 61% of these cases were related to rape. NCRB data itself shows that 50 percent of POCSO cases are against children between the ages of 16 and 18. This shows that due to the increase in the age of consent, boys of 16 to 18 years are becoming more accused in the purview of POCSO.

Need to eliminate contradiction in laws

Which age is right for sex is a legal as well as a biological question. The age of consent for sex and the age of consent for sex within marriage have always been different in India. It is also a paradox that the age of consent is currently 18 years, but boys are allowed to have sex at a younger age in marriage. Section 375 of the IPC states that if a person has sex with his wife for 15 years, it will not amount to rape.

However, in 2017, the Supreme Court ruled that forced sexual intercourse with a wife of 15 to 18 years would amount to rape. That is, even now with the consent of the wife of 15 to 18 years, a man can have sex with her. Then the question remains as to why the age of consent for a wife below 18 years should be kept lower.

Same law for every girl

Actually the whole story of consent-disagreement is applicable to unmarried girls. There is a separate age of consent for married girls. There is a provision in the Child Marriage Restraint Act that girls below the age of 18 cannot be married. But under the Hindu Marriage Act, a girl below the age of 18 can be married. It is also ironic that the age of consent does not matter for 15 to 18 year old girls when they get married.

Muslims are also allowed to have sex with their wife up to 15 years. This explains the controversy surrounding the age of consent. Now the government is moving towards making the minimum age for marriage for girls as 21 years like boys. The bill related to this has also been introduced in the Lok Sabha in December 2021, on which the Standing Committee of Parliament is considering.

There should be emphasis on awareness and sex education

There are many aspects related to reducing the age of consent. Boys and girls of 16 to 18 years become active in sexual activity, but girls have to bear the consequences after that. Abortion is a serious issue among them.

Very sensitive issue for girls

Actually, one of the objectives of increasing the age of consent through POCSO law was that 18-year-old girls get so much understanding and courage that they can oppose the activities of family, relatives or close friends. This aspect also needs to be considered before reducing the age in a society like India.

What is the age of consent abroad

In most states of America, the age of consent is only 16 years. Although in some states it is also 17 and 18 years. 16 years in Canada and the United Kingdom. In France it is 15 and in Russia it is 16 years. In China this age is 14 years. In Uganda, the age of consent was raised from 14 to 18 in 1990. This was done with the aim of ending the sugar daddy culture there. Through this culture, old men there used to have sex with teenage girls, this was promoting the HIV epidemic. In Canada, the age of consent was raised from 14 to 16 in 2008.