Question of reconsidering age of consent for sex doesn’t arise: WCD Minister Smriti Irani

Irani was responding to a question in Parliament, less than two weeks after CJI Dr. D.Y. Chandrachud had publicly urged lawmakers to address the criminalisation of consensual sexual activity among adolescents.

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DAYS after the Chief Justice of India (CJI), Dr. D.Y. Chandrachud appealed to Parliament to have a relook at the issue of the age of consent under the Protection of Children from Sexual Offences ('POCSO') Act, 2012, the Union Government in Parliament said that the question does not arise. Union Women and Child Development Minister Smriti Irani stated this while responding to questions asked by Member of Parliament Binoy Viswam of the Communist Party of India.

Viswam sought to know whether the government is cognisant of the issue of age of consent whereby consensual sexual relationships between teenagers often get criminalised under the POCSO Act, and whether the government is considering any proposal to reduce the age of consent from 18 to 16 years under the Act to prevent the criminalisation of consensual relationships between teenagers.

In an ambiguous reply, the Minister skirted replying directly to the questions asked by the Parliamentarian. She instead informed the Parliament that the POCSO Act clearly defines a child as any person below the age of 18 years.

"The POCSO Act provides punishment as per the gravity of offence. The Act was further amended in 2019 to introduce more stringent punishment including death penalty for committing sexual crimes on children, with a view to deter the perpetrators & prevent such crimes against children. In case of commission of offence by child, Section-34 under POCSO Act already provides procedure in case of commission of offence by child and determination of age by Special Court as follows: – i. Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000", Minister Irani told Rajya Sabha.

She added if any question arises in any proceeding before the Special Court whether a person is a child or not, such a question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. Additionally, the Majority Act, 1875 provides 18 years as the age for the attainment of majority.

To the pointed query whether the government is considering reducing the age of consent, she responded by saying that the question does not arise.

Earlier this month, CJI Dr. Chandrachud urged Parliamentarians to reconsider the issue of the age of consent under the POCSO Act as it, according to him, posed difficulties for judges examining cases of consensual sex involving adolescents. He was speaking at the annual stakeholder's consultation on the POCSO Act, alongside Irani.

A recent study by Enfold Proactive Health Trust and UNICEF-India found that one in every four cases under the POCSO Act in West Bengal, Assam and Maharashtra constituted "romantic cases", where the victim was found to be in a consensual relationship with the accused. It added that in nearly half of the "romantic cases" (46.6 per cent), the girl was between 16 to 18 years old.

Meanwhile, the Supreme Court on December 9 agreed to examine the petition filed by the National Commission for Women seeking equal application of the POCSO Act, irrespective of religion and personal laws. A bench led by CJI Dr. Chandrachud issued notice to the Union Government and the Law Commission of India, calling for their responses to the petition.

The petition claims that it seeks to enforce the fundamental rights of minor Muslim women who have contracted marriage before attaining the age of majority, whether consensually or otherwise.

It states that the minimum age of marriage under various personal laws other than the Muslim personal law is consistent and in consonance with other prevailing penal laws.

"Under the Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, the minimum age of marriage for a man is 21 years and for a woman is 18 years. However, under the Muslim personal law in India, which continues to remain uncodified and unconsolidated, persons who gave attained puberty are eligible to get married i.e. on attaining the age of 15 years, while they are still minor", the petition states.

It, thus, argues that this is not only arbitrary, irrational and discriminatory, but also violative of the provisions of penal laws.

"The [POCSO] Act, 2012 has been enacted to protect children (below 18 years), particularly women, from offences of sexual assault, sexual harassment, etc. As per Section 375 of the Indian Penal Code, 1860, which defines the offence of "rape", the consent of women below the age of 18 years is not valid consent in the eyes of the law and any sexual activity, as defined therein, with a minor, with or without consent, is a punishable offence.", the petition argues.

It goes on to state that the solemnisation of a marriage of a man below the age of 21 years and of a woman below the age of 18 years is a punishable offence under the Prohibition of Child Marriage Act, 2006. Thus, the Muslim personal law, which permits children to get married upon attaining puberty, that is, at the age of 15 years, is in the teeth of the aforesaid penal provisions, the petition contends.

"The distinction/classification on the basis of 'puberty' has no scientific backing or reasonable nexus with the eligibility for marriage/capacity to get married. A person who has attained puberty may be biologically capable of reproduction however, the same does not imply that the said person is mentally and psychologically mature enough to get married and physically mature to engage in sexual acts and consequently, bear children", the petition says.

The age of consent for sex in India is 18 years under the POCSO Act. Consent given by a person aged below 18 is not regarded as valid, and sexual intercourse with them amounts to rape.

Click here to read the reply.