Age of consent, marriage and the POCSO Act

The law on age of consent in India is constantly under flux but is yet to achieve an equitable balance.

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THE Law Commission of India, in its 283rd report, has ruled out the reduction in age of consent prescribed under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The report suggests that reducing the age of consent from 18 years to 16 years can be problematic in many ways; considering the fact that it would defeat the very objective of the POCSO Act. The report also says reducing the age of consent will lead to rise in 'child marriages' since the Protection of Child Marriage Act, 2005 is weak law and silent over age of consent and sexual relation with a minor, and the POCSO Act fills this void.

The report adds that children in the age group 15–18 years are the most vulnerable section in the age of the internet, and especially girl children are highly prone to grooming and manipulation in the digital age.

The report also says that reduction in the age of consent would lead to child trafficking and prostitution, which is an age-old plague of our society.

What the Law Commission has pointed out is of great concern but at the same time it creates deep conflict with many judgments that have come out of different high courts from time to time.

On July 10, a judgment by Bombay High Court exculpated a man convicted under the POCSO Act for raping a minor girl in 2016. The ground on which the high court judgment relied is worthy of consideration. As per the facts and evidence and from their personal claim, the accused, a 25-year-old man in 2016, and the person he was in a relationship with, a 17-year-old girl at that time, were in a consensual relationship.

By the time the trial court convicted the man under the POCSO Act, considering the established statutory principle that the "consent of a minor is no consent", the girl had attained majority.

The term 'minor' has been defined in Indian Majority Act, 1875. Section 3 of the Act reads, "Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before." 

In as much as the judgment is concerned, prima facie it appears that the court went one step further and extended the scope of 'age of consent' and reevaluated the 'objective of the POCSO Act'.

Also read: Law Commission rules out reducing age of consent, calls for greater judicial discretion in POCSO cases

Broadly, the court opined that the POCSO Act was brought forth to combat sexual exploitation of children and was never meant to criminalise consensual sexual intercourse amongst adolescents.

Further, the court noted that a mere apprehension that an adolescent would make an impulsive and bad decision cannot be a ground to classify them under one head, ignoring their will and wishes.

In 2022, the Delhi and Karnataka high courts made similar observations. It was also pointed out that apart from the questionable merits of such cases, they also increase the burden on an already overburdened judiciary. 

Confusion between age of consent and age of marriage

The very notion of 'age of consent' in India is seen as synonymous with 'marriage'. Sexual intercourse before marriage is considered immoral, obscene and against the religious tenets. However, surveys show young adults in India are engaging in sexual intercourses before they get married.

Historically, if we trace the apparent conflict between 'age of consent' and 'age of marriage', we see that the conflict has been ongoing from the British colonial era. Age of Consent Act, 1891 was introduced in the year 1882, to increase age of consent from 10 to 12 years, but it was opposed by Hindu revivalist groups.

But the infamous 1889 case of Phulmoni Dasi, in which 10-year-old Phulmoni died after her husband, a 35-year-old man, had forceful physical intercourse with her, and the case of Rukhmabai, which involved the death of an 11-year-old Bengali girl under similar circumstances, drove the British to implement the Act in 1891.

Similarly, the horrific Delhi gang rape in 2012 led to the Criminal Law Amendment Act, 2013, which brought forth important changes in the Indian Penal Code, 1860 and made the POCSO Act gender-fluid along with increasing the age of consent from 16 to 18 years.

According to the World Population Review, at present the age of consent globally stretches from 11 to 21 years and the most common range lies between 14 to 16 years. Nigeria has the lowest age of consent of 11 years, while Bahrain has the highest age of consent at 21 years.

Also read: Shariat versus POCSO Act: Supreme Court must resolve the conundrum

In India, the age of consent is 18 years, which is higher than the global average, which is indeed not a good sign. Creating a legal barrier to halt the biological flow by increasing the age of consent can result in sexual perversions and furtive, secretive information-seeking from and liaisons over dubious sources like the internet, which is dangerous.

Socio-legal problem with higher age of consent

Women's rights activist and advocate Flavia Agnes has pointed out that higher 'age of consent' works as a tool to increase parental control over adolescent girls.

It is common in elopement cases for parents to file rape charges against the boy or man who eloped with a girl to pressurise him to return their daughter, so that they can marry their daughter to the man of their choice.

A close analysis of lower court judgements reveals that most of such cases are 'statutory rapes' or 'technical rapes'. These cases perfectly exemplify how the legit consent of budding adolescents gets criminalised.

Another important conundrum is the issue of 'caste' and 'religion', when a girl of 'higher caste' elopes with a boy of 'lower caste' or with a boy of 'minority community', the situation becomes even more sensitive.

Honour culture is deeply rooted in the Indian social system, where women being unchaste is considered "impure" which leads to perverse body politics and harsh exploitation, which are entirely against fundamentals of principles of natural justice.

Looking at the grave nature of the cases, the judiciary steps in to fill the legislative vacuum, but judicial pronouncements on the issue tend to vacillate, underlying their limitation in the absence of legislative clarity.

Even the Chief Justice of India urged the Parliament in a speech to reconsider the age of consent under the POCSO Act. Considering all these findings, it is high time for the government of India to look at the issue afresh.

The law must find a balance between the need to protect adolescent boys and girls from predatory sexual exploitation while also recognising that sometimes it is the parents, the caste or religious community and the society at large that is seeking to exercise predatory control over young men and women in love and engaging in consensual sexual activity.