The courts in India are flooded with cases on the rampant misuse of the POCSO Act (Protection of Children Against Sexual Offences Act of 2012), in which consenting teenagers are prosecuted for acts that become illegal simply because of their age. The judiciary, over the last couple of years, has repeatedly urged lawmakers to separate the 'age of consent' from the 'age of marriage'. The Chief Justice of India, Justice DY Chandrachud, while addressing the National Stakeholders Consultation on the POCSO Act, asserted that the legislature should consider growing concerns relating to the age of consent under the 2012 Act, which is 18 years.
The POCSO Act (Prevention of Sexual Offences Act), 2012, criminalises all sexual activities for those under 18, even if there is consent between the two minors. The minimum age of consent for sexual intercourse was raised from 16 to 18 years in November 2012, when the law came into force. The law says any sexual activity with or without the woman's consent when she is below 18 constitutes rape. Anyone below 18 is considered incapable of giving consent.
"This anomaly was highlighted by the Justice Verma Committee constituted after the Nirbhaya case," Aparajita Singh, senior advocate, Supreme Court, explained.
"The committee recommended amending POCSO to reduce the age of consent to 16 to avoid contradiction with the IPC (Indian Penal Code). However, instead of amending POCSO, parliament amended the penal code to increase the age of consent from 16 to 18 in 2013," she said.
The age of consent was introduced through the Hindu Marriage Act, 1955. According to Section 5 (iii) of the Act, the boy should have completed 21 years and the girl should have completed 18 years at the time of marriage. Section 4 of Special Marriage Act, 1954 lays the same age of consent for marriage in India. The Child Marriage Restraint Act (1929) and even the latest Prohibition of Child Marriage Act, 2006, prohibit marriage before the age of maturity.
Closely related to the legal 'age for marriage' is the issue of 'age for consent', which denotes the minimum age at which a person is considered to be legally capable of consent to sexual intercourse.
Overriding the conservative view of premarital sex in the country, High Courts in various instances have interpreted the POCSO Act to safeguard the interest of consenting couples. The Supreme Court has taken the lead and made its position clear.
Recently, a bench of Justice KM Joseph and Justice BV Nagarathna, refused to interfere with the order of the Rajasthan High Court cancelling the proceedings against the husband of a minor. A single judge bench of Justice Bharati Dangre of the Bombay High Court recently made a distinction between the age of consent and age of marriage. The judge emphasised that sexual acts are not confined to marriage and both society and the judicial system must take note of this.
The abuse of the process is evident from the fact that between 2010 and 2013, a total of 1,728 cases were registered in Tamil Nadu, of which 1,274 cases remain pending after a decade. The Madras High Court has decided to identify the cases that involve a consensual relationship and cancel them if they are impacting the future of the children involved.
These cases are mainly those in which parents filed cases of rape against the boys with whom their teenage daughters were involved or eloped. While there have been discussions about having a uniform legal age of marriage at 21 for both boys and girls, the government has been silent about reducing the age of consent to 16 years.
Raising the age of consent to 18 years on paper doesn't change the ground reality that adolescents below 18 do indulge in sexual activities, which are deemed illegal by law. Criminalisation and stigmatisation have led to sexual and reproductive health challenges, adolescent pregnancy, and early childbirth, including unsafe abortions among adolescent girls.
This is a classic example of the law gone wrong, said Aparajita Singh.
"At an age where children just begin to explore the world, a boy in love with a consenting underage girl is branded a criminal. The investigation and prosecution permanently scars young minds. The courts are interpreting the law creatively to protect the hapless victims. However, the process itself is a punishment and by the time the court grants relief the damage is already done. Now that there is ample data to show the hounding of adolescents, it is time for the legislature to step in and undo the damage brought about by the amendment," she said.
International agreements uphold 18 years as the minimum age for consent to marriage, but rights laws do not recommend age limits for sexual consent. However, the world over, the rights of adolescents in relation to sexuality are recognised.
Many societies and cultures link age for sexual consent to puberty. Traditionally, in India, sex and marriage have been considered synonymous. However, given that the age for puberty has dropped and society has changed, there are concerns about the age for sexual consent and its implications on the health and psyche of the young people.
The courts have rightly said that it is high time the legislature looked into the grey area resulting in criminalising consensual teenage relationships, by reducing the age of consent from 18 to 16 years. This will ensure reforms and access to sexual and reproductive health services to adolescents, along with comprehensive sex education to help them make informed decisions.
The debate about reducing the age for consent is not meant to promote promiscuous behaviour, as some critics may argue, but rather represents a progressive step.
(Bharti Mishra Nath is a senior journalist.)
Disclaimer: These are the personal opinions of the author.