Image for representation.
Credit: iStock Photo
From 1860 to 2012, the age of consent to sex was 16 years (15 years if the girl was married). Under the Protection of Children from Sexual Abuse (POCSO) Act, 2012, and Section 375 IPC (amended in 2013), the age of consent for having sex for minors was changed to 18 years, ostensibly in the interest of children. Parliament felt it knew what was best for children, and it was saving minors from predatory adults.
The direct result has been that large numbers of adolescents (between 16 and 18 years) have been prosecuted and sent to jail because they engaged in voluntary sex. Their lives have been destroyed by the process. Very few cases have resulted in the finding of guilt. Several magistrates have complained that jails are being filled by such minors. Studies indicate that 15%-25% of the cases are romantic in nature. They are simply being punished for acting on their natural instincts.
Senior advocate Anand Grover
While the purpose of the amendment in 2012/13 was to supposedly protect minors, they have only resulted in them being harassed in the criminal process and their lives destroyed. Now questions are being rightly asked whether increasing the age of consent to 18 years in the POCSO Act and the IPC was appropriate. The ostensible purpose of reducing the age was to protect minors from predatory male adults. Parliament, it seems, did not envisage that sex between two mature minors aged between 16 and 18 years would also be voluntary sex. That is the major flaw in the amendments. It also did not take into consideration that, otherwise in law, mature minors or those who can understand the consequences of their action can also consent to a proposed intervention.
It has been understood that minors are able to understand the consequences of a proposed medical intervention and consent to the medical intervention. In 1983, the English courts, in the Gillick case, decided that a mature minor can consent to obtain medical advice on contraception without their parents being present. The English courts held that if a minor could understand the medical procedure, its risks, benefits and alternatives, then the doctor could advise them. Further, the parents' right to make decisions for them diminished as the child’s capacity to understand increased.
Though the Gillicks doctrine has not been followed in India directly, there is a perceptible shift in cases relating to abortion in recognising the autonomy of mature minors.
If the mature minor rule can be followed in a serious issue like abortion, there is no reason why that should not be recognised in the case of voluntary sex between two minors.
Moreover, it needs to be appreciated that over the last five decades, there has been a perceptible shift in reaching the age of puberty in minors. The minors are attaining puberty at a much lower age now. It cannot be denied that in the information age that we are in today, minors are better informed about issues, including those relating to sex and therefore are more mature in making decisions. Therefore, voluntary sex between two mature minors aged between 16 and 18 years should not be criminalised. This does not mean that an adult having sex with a minor should be let off. They should be prosecuted.
Unless we seriously take up sex education in schools and inform students honestly about what is good and bad about sex, including respecting the sexual partners, particularly girls and women, not only would minors having voluntary sex be put behind bars, but the rise in the number of cases of rapes would also not stop.
There is an urgent need to ensure that prosecutions are not launched in cases of voluntary sex between minors aged between 16 and 18 years and that sexual education is seriously imparted in schools.
(The writer is a Senior Advocate practising at the Supreme Court of India. He was the UN Special Rapporteur on the Right to Health from 2018 to 2024.)