Age of Consent in India

Age of consent has long been a controversial issue in India. Coming to a consensus as to what the age of consent should be has proved to be a challenging job. The age of consent has never been stable, it’s always fluctuating as the public morality changes and ideas about gender and sexuality take different forms. The Indian Penal Code, 1860 prior to the Criminal Law Amendment, 2013 stated that sexual intercourse with a woman below the age of 16 years was to be considered ‘rape’ regardless of her consent being present or not.[1] In 2012, the much talked about POCSO Act was passed and among much controversy the age of consent was raised from 16 years to 18 years. The Criminal Law (Amendment) Act followed in 2013 which also raised the age of consent from 16 years to 18 years.

One of the key reasons why the decision of increasing the age of consent from 16 years to 18 years was mired in controversy was because the critics of increasing the age of consent contended that because this Act criminalizes indulging into sexual acts with a person below 18 years of age, regardless of consent, there is a high likelihood of enforcement agencies e.g. police exploiting their powers or of parents misusing the law to regulate their children’s sexual behavior. [2] This poses a serious challenge as there is a plethora of cases where false complaints, for example, of kidnapping have been filed against the accused. With each new legislation passed, there are always unintended consequences attached. In case of POCSO, as mentioned earlier, there are a lot of instances where false complaints are filed by parents against the lover of their minor child or by the minor herself/himself out of vengeance or pressure by their family.

Another shortcoming in not taking into account the consent of the minor is that outlawing the various kind of consensual sexual behavior that children indulge into completely discards their independence and fundamental rights.[3] One of the main reasons why the issue of age of consent is so hotly debated is because it criminalizes sexual conduct of adolescents which is deemed normal behavior at that age. The age of consent line is at the end of the day an artificially drawn line. There is no hard and fast basis on which this line has been drawn at eighteen. There are several factors based on which the age of consent is determined; these include relying on the fact of when a person becomes “mature”. This, quite clearly, is a hugely vague logic to apply as it’s extremely hard to pinpoint when a person attains sexual maturity to be able to enter into consenting sexual relationships.

To curb these malpractice of false cases being lodged against the innocent and to allow minors, especially, the ones who can count as young adults to express their sexuality freely the law needs to be amended. More importantly, there needs to be space for adjudicators to apply proper logic and reasoning in a given or specific case depending on the truthfulness of the allegation. A relaxing approach needs to be taken by judges wherein they hold the accused guilty or acquit them based on the facts and circumstances of the case. It needs to ensure that nobody gets blind advantage due to the wording of these provisions.

The main object of POCSO Act dictates that there must be total prohibition upon teenagers or adolescents from having any kind of sexual relationship but this too has been critiqued on the grounds that if that interpretation is allowed, it would surmount to the persons below 18 being treated as “state property”. It is almost equal to saying that persons below 18 years aren’t citizens as they can’t exercise all the rights as citizens above 18 years of age can. This is in no way a reasonable classification. Therefore, it is of utmost importance, that the age of consent line be blurred for good. This will drastically reduce false complaint cases filed against innocent persons and undoubtedly guarantee that minors who can be classified as young adults get to exercise their rights such as willingly entering into consensual relationships fearlessly.

[1] Section 375, Indian Penal Code , 1890

[2] http://www.prsindia.org/theprsblog/?p=1680

[3] http://www.tarshi.net/inplainspeak/voices-love-and-sex-in-the-time-of-the-pocso-act-2012/


ABOUT THE AUTHOR

Prithvika Photo

PRITHVIKA REDDY

Prithvika Reddy, an aspiring bureaucrat, is a final-year law student from O.P Jindal Global University, Sonipat. Her subjects of interest are Constitutional Law and Human Rights. Also, she’s a History Enthusiast. She loves keeping herself updated with the current news.

 

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