Age of consent needs a relook

The Chief Justice of India, while delivering the keynote address at the inaugural two-day session of the National Stakeholders Consultation on the Prevention of Children from Sexual Offences (Pocso) Act, urged the parliament to reconsider the issue of “Age of Consent” under the Act. He has highlighted the difficulties faced by judges in trial and appellate courts in examining cases of consensual sex involving adolescents.

The United Nations formally defines “adolescence” as the period between 10 and 19 years of age and “young people” as between 10 and 24 years of age in the South-East Asia Region.

The roots of the age of consent can be found in the 19th-century case of Phulmoni Devi, a minor woman who married a man aged 35 at the age of 11 and died as her husband allegedly forcibly consummated the marriage. The death of Phulmoni Devi, after she was brutally raped by her husband, served as a catalyst for its legislation and the enactment of the Age of Consent Act, 1891. Later, the husband was acquitted of the rape charge but found guilty
of causing death by a rash and negligent act.

Over time, the age of consent has been increased by various laws in India and was 16 from 1940 until 2012, when the Pocso Act raised the age of consent to 18 years, one of the highest ages globally.

A vast majority of countries set their ages in the range of 14 to 16 years. Children as young as 14 are considered able to give consent to sex in Germany, Austria, Hungary, Italy, and Portugal. In England and Wales, it is 16 years. Countries such as Cyprus (17), Ireland (17), Turkey (18), and the Vatican (18) do not fit into this pattern. In 1880, the age of consent was set at 10 or 12 in most of the states in the US. By 1920, 26 states had set it at 18, and Georgia at 14.

Among Asian countries, Japan has set the age of consent at 13, though some municipalities, such as Tokyo, prohibit sexual activity for people under the age of 18.

In Bangladesh, Section 9(1) of the Women and Child Abuse Prevention Act, 2000, defined rape as sexual intercourse with a woman with or without consent when she is under 16 years of age.

The age of consent in Sri Lanka is 16 years, regardless of gender or sexual orientation. (Girls belonging to Sri Lanka’s Moor and Malay minorities are allowed to marry after 12 years of age and below 12 years with the approval of their religious leader.)

In comparison, India’s Child Marriage Prohibition Act, 2006, sets the age of marriage for males and females at 21 and 18 years, respectively; population control is one of the reasons for such a large gap in marriageable ages between boys and girls.

In India, the definition of “child”
under various statutes also differs widely, resulting in a conflict amongst various statutes.

According to Miranda Sawyer, a British journalist specialising in youth culture, “people have sexual feelings from a very early age, considering that sex is a natural behaviour.” She favours 12 years as the age of consent in the United Kingdom while calling the criminalisation of sexual activity under the age of 16 “laughably unrealistic.”

Approximately half of the states in the US allow children under the age of consent to marry with special permission, either from their parents or from a court. Children as young as 10 were among the almost 2,50,000 US minors who got married between 2000 and 2010, The Guardian reports.

In contrast, India’s Pocso Act, 2012, criminalises all sexual activities for those under the age of 18 years, even if consent was factually present between two minors.

A study conducted by Enfold Proactive Health Trust, Bengaluru, found that 93.8% of romantic cases tried under POCSO ended in acquittal after a period of 1.4 to 2.3 years from the time of filing of the FIR to disposal by the court.

The Madras High Court recently stated that it is eagerly awaiting a reduction in the age of consent under the Pocso Act from the current 18 years. In Vijaylakshmi vs. State, the Madras HC questioned the wisdom of criminalising such acts.

In Sabari vs. Inspector of Police, the Madras HC held that “the court is concerned about the growing incidence of offences under the Pocso Act on the one side and also the Rigours Imprisonment envisaged in the Act. Sometimes it happens that such offences are slapped against teenagers, who fall victim to the application of the Pocso Act at a young age without understanding the implication of the severity of the enactment.”

A similar view was expressed in a criminal appeal (No: 100515/2021) by the Division Bench of the Karnataka High Court. Justice Suraj Govindaraj, speaking for the bench, stated that “the Court has come across several cases relating to minor girls above the age of 16 who have fallen in love and eloped and, in the meantime, had sexual intercourse with the boy; therefore, the Court was of the considered opinion that the Law Commission of India would have to rethink on the age criteria, in order to take into consideration the ground realities.”

Under the guise of effective implementation of the Child Marriage Prohibition Act, the bridegroom, his family members, and the minor bride’s parents are also prosecuted under the Pocso Act for abetment of sexual offenses. Child marriages are performed in rural areas due to lack of awareness, and other difficulties like poverty. Although the marriage is voidable under law, the bride is given the choice to decide whether to continue or annul the marriage once she attains majority.

As observed by the Karnataka HC, the way forward is comprehensive sex education to help adolescents make informed decisions, as well as reforms to ensure access to sexual and reproductive health services.

Given the circumstances, all stakeholders must reconsider the age of consent under the Pocso Act, and this is why the call given by the CJI is significant.

(The writer is an advocate practicing in the Karnataka High Court.)