Rethinking the Age of Consent – A Matter of Debate
(A) INTRODUCTION
In recent keynote address at the inaugural Session of the National Stakeholders Consultation on the POCSO Act, The Chief Justice of India DY Chandrachud opined that the legislature should consider growing concerns relating to the age of consent under the 2012 Act, which is 18 years.1 On the other side in recent session of parliament the Central Government has informed the Rajya Sabha that there is no proposal to reduce the age of consent from 18 years to 16 years under the POCSO Act to prevent the criminalisation of consensual relationships between teenagers2. Also in the recent years in the series of judgment delivered by the different High Courts raises the issue of criminalisation of mutual relationship between the child and adult under the POCSO Act.
All these events necessitate us to rethink on the age of consent in the context of provisions of POCSO Act. The two main issues arises out of these events, first is whether consensual sexual relation between minor with another minor or adult male would amount to offences of rape? And another issues is whether age of consent to sexual act requires to reduce from 18 to 16 years of age?
(B) WHAT IS THE AGE OF CONSENT?
The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Term age of consent nowhere defined in the law. Only the person who attained the age of majority is capable to give consent. The Indian majority Act 1875 provides that every other person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before. The POCSO Act 2012 defines “child” means any person below the age of eighteen years.
As per the prevailing law the minor is not capable to give consent and sexual act even with the consent of minor amounts to offences of rape under POCSO Act. The cases of consensual relationship of minor with adult comes under the POCSO Act and consensual relationship of minor with another minor comes under the Juvenile Justice Act.
(C) AGE OF MINORITY
The age of minority nowhere defined in the law. The different laws deals with definition of age of majority. The understanding the definitions of age of majority under different laws is important to analyse status of minor in the law.
The provisions dealing with age of majority under different laws are follows –
- The Indian majority Act 1875 provides every other person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.
- The POCSO Act 2012 defines “child” means any person below the age of eighteen years.
- Section 11 of the Indian Contract Act 1872 provides every person is competent to contract who is of the age of majority according to law to which he is subject and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.
- Section 5 of the Hindu Marriage Act 1955 provides one of the condition of valid marriage is the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage.
- The Prohibition of Child Marriage Act, 2006 provides, “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.
The analysis of the above provisions concludes that the person is minor who has not attained the age of majority. The Criminal Law Amendment Act 2013 reduced the age of Juvenile from 18 years to 16 years under Juvenile Justice Act. It means minor person can be prosecuted as adult in the cases of serious crime.
(D) AGE OF MINORITY VERSUS MATURITY
The recent rising in the filling of cases of rape against the male partner in consensual relationship under POCSO Act and also cases arising out of the consequences of child marriage needs to rethink on relationship between age of minority and age of maturity.
- Child marriage versus Offences of Rape –
The Prohibition of Child Marriage Act provides punishment for promoting child marriage. The Child marriage does not become void on the ground of party to marriage is minor. The establishing sexual relationship with minor wife above the age of 15 years is exempted from category of rape under the Indian Penal Code. But the POCSO Act punishes all forms of sexual relationship with minor under age of 18 years.
- Conflict with personal law –
The personal law governs the marriages of person. Under the Muslim personal law the age of puberty is condition for valid marriage. Again POCSO Act creates conflict with personal law.
- Maturity of body versus Maturity of mind –
The POCSO Act enacted to protect the child from sexual violence. The Child means person below the age of eighteen years. The law equates maturity of body with age of attaining majority. On the other hand maturity of mind is capacity of taking conscious decision of own body.
The cases of consensual relationship with minor is crime under the POCSO Act. Also there are several instances where the parents files cases of rape against the boys with whom their teenage daughters have eloped. These events creates conflict with decision of minor to take conscious decision of own body.
(E) CONSENSUAL RELATION WITH MINOR – JUDICIAL VIEW
The Apex Court and various High Courts have dealt with issue of offences of rape arising out of consensual relationship under the POCSO Act and called for a rethink on the age of consent.
The Delhi High Court in AK vs State Govt of NCT of Delhi (2022)3 has said that the intention of The POCSO Act was to protect the children from sexual abuse and not criminalise consensual romantic relationships of young adults.
The Madras High Court in Ravi @ Virumandi vs State (2022)4 while upholding the conviction said that it is “eagerly” waiting for an amendment in the law to appropriately deal with cases involving relationships of adolescents.
The Karnataka High Court5 in significant case observed that in view of the ground realities, it is imperative for the Law Commission to rethink on the age of consent under the POCSO Act.
The Punjab and Haryana High Court in Gulam Deen v State of Punjab (2022)6 held that as per Muslim personal law, a Muslim girl over the age of 15 years is competent to enter into a contract of marriage with the person of her choice. This judgment is challenged before the Supreme Court by National Commission for the Protection of Child Rights (NCPCR) on the ground of ruling was in contravention of the Prohibition of Child Marriage Act (PCM Act) and the POCSO Act as it effectively allowed child marriage.7
(F) A MATTER OF DEBATE
The above discussion on the law and judicial decisions creates need of larger debate on rethinking age of consent. The following main issues arises for debate
- Whether reducing the age of consent from 18 years to 16 years is required under the POCSO Act?
- Whether the consensual relationship with a minor should be penalized under the law?
- Whether the penalising consensual relationship violates minor person right to take decision of one’s own body?
- Whether the POCSO Act conflicts with the personal law?
The above issues have already been dealt with in various decisions of the Apex court and High Courts.
On the issue number one as discussed earlier the CJI DY Chandrachud urges parliament to consider concerns about the age of consent under the POCSO Act. This issue is also significant in the context of recent government proposal to increase age of marriage of girl from 18 years to 21 years.
On the issue number two and three in recent decision the High Court of Madras and Karnataka suggested that the parliament has to rethink on the age of consent under the POCSO Act.
On the last issue the judgment of the Punjab and Haryana High Court is challenged before the Supreme Court. The Supreme Court decision will be significant in dealing with the conflict of the POCSO Act with the Personal Law.
(G) CONCLUSION
As discussed above the parliament should discuss and debate on the issue of the age of consent. As per the present law, a minor is not capable to give consent, and hence sexual relations with a minor even with consent is punishable under POCSO Act. One view can be said that penalising the consensual relationship with a minor is violative of the right to take the decision of one’s own body. But on the other hand another view can be said that If the minor is not capable to nourish himself, dependent on the guardian to protect the property, and not able to take independent decisions, then no need to discuss the issue of consent because minor is not capable to give consent.
- Livelaw.in – CJI DY Chandrachud Urges Parliament To Consider Concerns About Age Of Consent Under POCSO Act
- Livelaw.in – No Proposal To Reduce Age Of Consent Under POCSO Act : Centre Tells Rajya Sabha
- AK Vs. State Govt of NCT of Delhi (Delhi High Court 2022)
- Ravi @ Virumandi v State (Madras High Court 2022)
- 2022 LiveLaw (Kar) 443
- Gulam Deen v State of Punjab (Punjab & Haryana High Court 2022)
- BarandBench.com – NCPCR moves Supreme Court against HC order allowing Muslim girl over 15 years to enter into valid marriage
good article
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