By Dr Abhishek Atrey
Recently, the Madhya Pradesh High Court urged the central government to reduce the age of sexual consent from the current 18 years to 16. Justice Deepak Kumar Agarwal was hearing a petition to quash charges against a 23-year-old man who was accused of raping a minor who came to him for coaching. The Court said that the Criminal Law (Amendment) Act which raised the age had “disturbed the fabric of society” resulting in “injustice with adolescent boys”.
Last year during a keynote address at the National Annual Stakeholders Consultation on Child Protection, Chief Justice of India (CJI) DY Chandrachud had asked lawmakers to address the “growing concern” regarding the criminalisation of adolescents who engage in consensual sexual activity, under the Protection of Children from Sexual Offences (POCSO) Act. The 2012 Act fixed the minimum age of consent at 18. “As you are no doubt aware, the POCSO Act criminalises all sexual activity for those under the age of 18, regardless of whether consent is factually present between the two minors in a particular case. In my time as a judge, I have observed that this category of cases poses difficult questions for judges across the spectrum,” said CJI Chandrachud.
These statements have led to some debate among jurists who are bound by law in taking decisions in such cases. Under the stringent POCSO Act and the Indian Penal Code (IPC), the age of sexual consent is 18 years and any such act with a female below 18 amounts to rape, irrespective of her consent. But in the present era of technology, internet, mobiles, OTT, movies and increasing access to all kinds of information, children are growing up fast and are eager to explore the world. So how realistic is 18 years as the age of consent? What is the rationale behind fixing this age? Should it not be reviewed or reduced in the present circumstances?
Surprisingly, even as society advances, the committee formed by Uttarakhand to decide on the Uniform Civil Code is going to recommend increasing the age of marriage for girls from 18 years to 21. This goes against practical considerations.
A report by the Indian Institute of Population Studies on premarital romantic partnerships is illuminating. Among those surveyed, 42% of men and 26% of women admitted engaging in sex with their partners, with a sizeable number being under 18 years. Therefore, criminalising sex between adolescents in a society where it is quite prevalent is likely to lead to the arrest of many men.
Such instances were seen in the US where the age of consent was increased to 18. In certain states, 41% of rape cases were false. Also, let us not forget that from 16 to 18 years is when many hormonal changes take place and adolescents experiment. So in case there is a fallout between a couple and the girl accuses her partner of rape, the minor boy will be left with no legal recourse.
Recently, the Home Ministry informed Parliament that the conviction rate in rape cases had increased from 27.2% in 2018 to 39.3% in 2020. Therefore, with a 60% acquittal rate, we cannot ignore the possibility of false cases of rape being registered. High Courts on several occasions have granted bail to accused persons who have been living happily with their partners irrespective of the fact that “rape” happened when the girl was a minor.
Courts have often taken a proactive role in such cases. The Punjab and Haryana High Court in Gulam Deen vs State of Punjab gave protection to a Muslim couple where the girl was 16 years and the man, 36 years. However, the National Commission for Protection of Child Rights filed a Special Leave Petition against the order.
Recently, the Madras High Court in its review of the application of POCSO and Juvenile Justice Acts said that cases of consensual adolescent sex must be identified and separated from genuine abuse cases, and be quashed if proceedings are found to be against the adolescents’ interests.
In another case, the Orissa High Court on July 5 acquitted a 45-year-old man who had been in jail for nearly a decade on the charge of raping a minor. Justice SK Sahoo said that from the case records, the girl, who was 17 then, accompanied the accused into the jungles and had sex with him every day, despite knowing that he was a married man with four children. Further, the man never promised to marry her. “She also knew that marriage with the accused was not possible as he was a married person with children. Therefore, in my humble view, she was a consenting party,” Justice Sahoo said.
According to Section 5 of the Hindu Marriage Act, 1955, Section 4 of Special Marriage Act, 1954, Section 60 of the Indian Christian Marriage Act, 1872, the minimum age of marriage of a girl is 18 years and of a boy, 21 years. According to Section 375 of the IPC, any kind of sexual intercourse, with or without consent, when the girl is under 18 is rape.
However, Exception 2 of Section 375 kept out sexual intercourse or sexual act by a man with his own wife above 15 years from the definition of rape. But Exception 2 was struck down by the Supreme Court in 2017 in the case of Independent Thought as it held that it was in violation of Articles 14, 15 and 21 and POCSO Act, 2012, and Juvenile Justice (Care and Protection of Children) Act, 2015.
The dignity of an individual, right to privacy and right to take a decision regarding sexuality were concepts that were always supported by the Supreme Court in several judgments. A nine-judge bench of the Supreme Court in KS Puttaswamy held that the right to privacy is a fundamental right under Article 21. In the case of Navtej Johar, the Court struck down that part of Section 377 of the IPC which criminalised consensual sexual relationship between homosexuals, heterosexuals and lesbians. In the case of Joseph Shine, the Supreme Court struck down Section 497 of the IPC regarding adultery along with the corresponding Section 198 of the Criminal Procedure Code. So the Supreme Court which has often emerged as a custodian and guardian of individual rights went to the extent of striking down laws which were curbing freedom, privacy and individual decisions regarding sexuality.
Under IPC, 1860, the age of consent was only for girls and was initially pegged at 10 years. This was raised to 12 in 1891, 14 in 1925, 16 in 1940 and 18 in 2013. Sexual activity with a girl below the prescribed statutory minimum age amounted to rape, irrespective of the girl’s consent. We did not have any age of consent for boys, and it was only in 2012 that lawmakers woke up to the possibility of sexual abuse of minor boys. In 2012, we got gender-neutral legislation for the protection of children against sexual offences. POCSO fixed the age of consent for both boys and girls at 18.
The Child Marriage Restraint Act, 1929, popularly known as the Sarda Act, prescribed the age of marriage as 14 for girls and 18 for boys. This was raised in 1978 to 18 and 21, respectively. This has now been repealed and replaced by the Prohibition of Child Marriage Act, 2006. Article 16 of the Convention of Elimination of Discrimination Against Women (CEDAW) deals with marriage and family. It says that child marriages should not have a legal effect. India signed CEDAW in 1980, but even then, child marriages are treated only as voidable and not void. Thus, till a child bride applies for annulment, the marriage is deemed as perfectly valid.
By application of present criminal laws, a girl below 18 can’t be allowed to have sex even if she is lawfully married, and above 18 years she cannot say no because there is a presumption of matrimonial consent. Under Article 8 of the European Convention on Human Rights, the concept of the right of private life includes right to sexual life. The concern is the way the age of consent is interpreted and applied in India, which is a closed society where love is taboo and public display of affection is frowned upon. Honour killings are a stark testimony to our dark underbelly. Thus, there are many cases where the desire for togetherness compels young couples to elope. Invariably, the girl’s father registers a case of kidnapping against the boy and once the girl comes to the custody of her parents, she is compelled to file a case of rape against the boy.
Criminalising consensual sexual activities among children will have a negative impact. Almost all countries establish a minimum age for sexual consent; most set it at between 14 and 16 years. The lowest minimum age is 14 years in countries such as Austria, Bulgaria, Estonia, Germany, Hungary, Italy and Portugal and the highest is 18 years in India and Pakistan.
Therefore, it is a time to revisit the age of consent after seeing the reality of our times.
—The writer is Advocate-On-Record, Supreme Court