Giving a voice to choice vs consent

The debate on the age of consent can not be answered by just questioning the law

In a society rapidly evolving and grappling with changing social dynamics, the age of consent remains a critical aspect of legal and societal life. India, a country with a rich tapestry of traditions and diverse cultures, finds itself at a juncture where the age of consent demands re-evaluation. The Chief Justice of India too delved into the imperative need for revisiting and potentially lowering the age of consent in India, aligning it with contemporary realities. The Law Commission of India submitted a report recommending it remain at 18 which sparked a debate on whether it should be reduced to 16.

This fundamental age marker represents a delicate balance between protecting minors from exploitation and empowering them with autonomy over their own decisions. So how do people perceive the denial of this change? “I believe it should be lowered as adolescent sex is a reality that cannot be ignored and minors need to be protected from wrongful prosecution,” says Vikram Aditya Singh, aged 17. “I know my friends and I know their girlfriends and I can’t imagine that what they share comes under statutory rape,” says Satvik Lohan, aged 16. On the surface, many believe that lowering the age of consent is the need of the hour as we’ve come past a time where sexual acts belong only in the matrimonial home. However, there is more to this recommendation than an age-old criminalisation of sex.

Concept of exceptions

“I don’t believe that people under the age of 18 are incapable of making decisions about sex, I think it is a personal choice but it is also important to see how much keeping it at 18 is doing in protecting children from sexual abuse, prohibiting child marriage and everything else under POCSO,” says Abia Ahmed, aged 20. This is similar to the line of reasoning used by the Law Commission themselves, reporting that “romantic cases” constitute a very small fraction of POCSO cases. Approximately 24% of POCSO cases are consensual ones and most of them already end in acquittals.

“Making the age of consent 16 as a blanket rule, especially in a country like India can open the doors to a detrimental state of affairs,” says Tara Khanna, 21. How then should one proceed in navigating the paradoxical age of consent? By protecting minors against wrongful prosecution while maintaining a law that allows them protection against child trafficking, child sex abuse etc. “There should be a way of having a differential age of consent for minor-minor relationships and one that prohibits people over 18 from entering relationships with minors. Even in the commercial world, the law is riddled with differential rules and exceptions, I wonder why they don’t do it here,” she adds. The concept of exceptions is not unknown, many countries have adopted a close-in-age exception for consensual relationships involving minors.

A tacit approval?

The Law Commission report also concluded the same, suggesting “judicial discretion” for lesser sentencing in cases of consensual intimacy of persons over the age of 16 within a maximum age gap of three years. “The biggest fallacy of the report is that no adolescents were consulted. They are the people to whom the law pertains and their views must be taken into consideration. Further, the report discarded the concept of consent. In fact, the wording they’ve used in the recommendation is tacit approval which disregards a young person’s agency and bodily autonomy,” says Avaantika Chawla, assistant professor, Jindal Global Law School. This observation offers a societal critique within a traditionalist cultural milieu. Why is there a questioning of lower sentencing, when the reality is that in consensual relationships, there should be no sentencing? This is where we see the criminalisation of adolescent sex, and call for a law that balances protection and participation rather than discredits any adolescent sexual autonomy. 

The recommendations from the Law Commission allowed for discretion but also stated several factors to be taken into account. One of them was that “there is no change in the social or cultural background of the child,” does this factor warrant consideration or does it allude to the social norms of a predated India? Further, they recommend the Special Court consider, “that the family members of the accused or that of the child or that of both of them accept and approve the relationship,” this association of parental consent with their children’s act of sexual consent is almost policing rather than protecting adolescents. These recommendations possibly serve as a comment on the socio-political environment that the country finds itself in today.

Can we be progressive?

“I believe there needs to be a clearly stated age of consent. I am 19 years old now and the volume of differences in thought, and character that I hold would have me confidently say that when you’re under 18 you can’t always make wise decisions. Children need to be protected and the POCSO does that,” says Vedarth Alva. “I read that one in four cases that come to the courts are romantic ones and 80% of those are reported by the relatives of the girl, to put it blatantly I think the law is being misused to police adolescent women and also wrongfully convicting minor boys,” says Rashi Mutha, 19. “The truth is that the problem does not lie in the law itself but in its practice. POCSO stands to protect children, the law is gender-neutral. It’s when the judgements we see always find blame in the boy and victim in the girl, that the narrative of false cases within the act becomes a convention,” says Arushi Singh, 22. This interpretation of cases found in judgements across the country caters to the symbol of a modest Indian woman who needs to be protected from the sexual advances of men. The 84th Law Commission Report observed, while recommending increasing the age of consent that “since marriage with a girl below 18 years is prohibited (though it is not void as a matter of personal law), sexual intercourse with a girl below 18 years should also be prohibited.” This stands as a written discourse of the moral values of the state. The law on consent should reflect more progressive values as adolescent relationships are a social reality of Indian youth. “More than drawing guidelines that reiterate the idea of woman as gatekeepers and men as initiators, there needs to be an open conversation about de-stigmatising adolescent love, inter-caste love, inter-religious love, look beyond the provisions of law and establishing the concept of consent, acknowledging the existence of these sexual relationships,” says Saumya Saxena who served on the 21st Law Commission.

The Age of Consent and the Law Commission Report all come from a very gendered, conservative view of Indian society against what the younger generation experiences. There is a requirement for exceptions and more importantly, an acknowledgement of the very real consenting of sexual behaviour among adolescents that both the law and education play a part in enabling.