The age of consent in India requires a rethink

The age of consent for sex must be re-examined in light of its impact on teenage sexuality, sexual assault cases, and the age of marriage in India.   

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How did a recent Karnataka High Court decision reignite the debate on age of consent?

EARLIER this month, the Karnataka High Court, while dismissing an appeal by the Karnataka government on the acquittal of a boy under the Protection Of Children from Sexual Offences Act, 2012 ('POCSO Act'), faced strong objections from the victim and her parents. 

The high court went on to advise that the Law Commission reconsider the age of consensual sex to address the issue of instances of mutual love affairs amongst minor girls and boys, who are aged above 16 but below 18 years. It also observed that there has been a pattern of similar cases where minor girls above 16 have eloped and entered into consensual sexual relationships. 

In light of the recent debate on raising the age of marriage for women from 18 to 21 years, it is pertinent to ask: is merely raising the age of marriage sufficient to deal with strings of such cases? In a country like India, where sexual relationships are traditionally attributed to marriage, what role does the age of marriage play?

Also read: The need for revising the age of consent under the POCSO Act

What is the history of age of marriage and consent, and sexual assault cases in India?

The apparent clash between the 'age of consent' and the 'age of marriage' in India goes hand in hand, and dates back to the British colonial era. The legal records of this infamous scuffle can be traced to the year 1882, subsequent to which the Age of Consent Act, 1891 was passed. The legislative aim behind it was to raise the age of consent for sexual intercourse from 10 to 12 years for all girls, married or unmarried, in all jurisdictions. Its violation was subject to criminal prosecution as rape with an exception to the age of consent for girls' marriage by 11 years of age. 

This move was initially opposed in the Legislative Council of the Governor-General of India in Calcutta by orthodox Hindus. However, the aftermath of infamous cases like those of Phulmoni Dasi, which involved the death of a 10 year old girl after forceful intercourse by her 35-year-old husband in 1889, and Rukhmabai, which involved the unfortunate death of an 11-year-old Bengali girl, ultimately drove the British to push the legislation in 1891.

In the same vein, in 2012, after the infamous Delhi gang rape occurred, more stringent laws pertaining to rape and sexual assault were introduced by means of the Criminal Law Amendment, 2013. Among other things, it amended various sections of the Indian Penal Code, 1860, including  Sections 375 (defining rape), 376 (providing punishment for rape), and 354 (providing definitions and penal provisions for sexual harassment). Subsequently, the POCSO Act not only made rape laws in India more gender fluid, but also increased the age of consent for sexual activity from 16 years to 18 years for children of all genders.

In 2019, the Madras High Court also directed that the age of consent in sexual intercourse be reconsidered, lowering it from 18 to 16 years. There is also ample data to suggest that the legal age of consent and child marriage laws are selectively used by parents to target relationships that involve inter-caste or inter-religious affairs, and in general where the parents do not approve of the relationship. 

In the case before the Madras high court, the accused, who at the time of the commission of the act was 19 years old, was accused of kidnapping and sexually assaulting a 17-year-old girl. Despite the girl's testimony that it was a consensual relationship, lack of evidence, and the family's persuasion on arranged marriage, the lower court convicted him. It was then, that the high court opined that a girl above 16 years of age was mature enough to enter into a consensual relationship. The court also commented that in cases where both the girl and the boy are under 18 years and elope together, only the boy is punished, which is unfair as per the principles of natural justice. 

Also read: The objective of POCSO is not to criminalise consensual sexual relations; it needs amendment: Justice Indira Banerjee

What is the relation between age of consent, sexuality and sexual assault laws?

Various studies have also found how consensual relationships between adolescents or involving adolescents are reported as sexual assaults. The Hindu in its study based in Delhi (2013) and Mumbai (2015) found that in approximately 33 per cent and 23 per cent of the sexual assault cases involving adolescent girls respectively, the girl stated that the sexual intercourse was consensual. A similar study by the National Law School of India University, Bengaluru shows that a considerable proportion of adolescent girls between 16-18 years of age refuse to testify against the accused under the POCSO Act.

Tracing back, even the Justice J.S.Verma-led Committee on Amendments to Criminal Law  recommended criminalisation of sexual intercourse below 16 years of age under the POCSO Act, confirming with the then existing provisions under the Indian Penal Code. However, without paying heed, the legislature still went forward with setting up 18 years as the age of consent. Moreover, the issue of the conflation of the age of consent and age of marriage has previously been raised by the National Commission for Women in the 205th Law Commission of India report. 

Another crucial factor is adolescent sexuality. As per Nation Family and Health Survey ('NFHS')-4 data (2015-16), 11 per cent girls below 15 years and 39 per cent girls aged below 18 had sexual intercourse. An analysis of NFHS-5 (2019-20) data in respect of adolescent fertility rate also gives an estimate of sexually active adolescent women within and outside marriage. It reveals that the adolescent fertility rate for women aged 15-19 years was 27 per cent in urban areas and 49 per cent in rural areas. 

Like many gender-based laws in India, this is often exploited to work in favour of women, and specifically their families. The current laws against sexual offences committed against minors contribute in producing hardened criminals. This is especially so in cases where the sex was consensual between a minor girl, of say 17 years of age, and an adult boy or accused of 19 or 20 years of age. 

In such scenarios, the boy is apprehended under the POCSO Act, wherein the punishment for the same may extend for up to 10 years. Often, the people who fall prey to such laws are adivasis or people from tribal communities, because their customary laws permit child marriage. The problem arises in such cases when the minor bride conceives, and subsequently her husband is charged with the provisions of the POCSO Act, which he did not have any knowledge of.

Contrary to this, the Hindu Marriage Act, 1955 does not invalidate child marriages, that is, they are not void but are only punishable under the Prohibition of Child Marriage Act, 2006. So, there is an apparent conflict between customary laws and codified laws. If the age of consent is reduced, which one should be given priority?

How are age of consent and abortion laws linked?

If Indian courts try to follow an American model of age of consent, it would not be an ideal approach to the issue, primarily because of one major difference between the existing laws in both the countries, that is, abortion rights. The United States of America Supreme Court recently criminalised abortion. Arguably, this may not act as much of a deterrence to abortion but rather encourage unsafe abortion practices in America. 

On the other hand, if the age of consent is to be actually reduced to 16 years of age, the Indian legal infrastructure can accommodate the obvious challenge of teen pregnancies under the Medical Termination of Pregnancy Act, 1971 ('MTP Act'). 

Under Section 3 of the MTP Act, a woman and her partner are allowed to terminate an unwanted pregnancy if it takes a toll on the mental well-being of the woman. Moreover, the pregnancy may also be terminated with the consent of two doctors in cases of health complications or danger to the life of the woman. 

Also read: Gestational change in India's abortion jurisprudence

Moreover, an expanded scope of abortion under the MTP Act has been reinforced by judicial decisions. Most recently, a Supreme Court ruling extended the right to abort to an unmarried woman and opined that they also have the right to safe and legal abortion, at par with a married woman.

However, if the age of consent is actually lowered to 16 years, the current laws which run parallel to the age of consent are not adequate to accommodate this change. The prima facie issue with that is the legal age of marriage, which may be raised to 21 years subsequent to the Prohibition of Child Marriage (Amendment) Act, 2021.

Moreover, the repercussion of legalising sexual relationships in teens aged 16-18 years would change the trajectory of the Indian social fabric. Additionally, lowering the age of consent without making any change in the age of marriage would practically imply that a teen of 16 years of age is mature enough to enter into a consensual sexual relationship, but a 20-year-old or an 18-year-old is not mature enough to marry as per their choice.

How have courts implemented the age of consent?

A recent judgement of the Punjab and Haryana High Court is worth mentioning. The high court ruled that a minor Muslim girl over 15 years of age is free to marry a person of her choice and such marriage would not be void under the Prohibition of Child Marriage Act. This remark of the Court runs contrary to the universality that the newly-introduced Prohibition of Child Marriage (Amendment) Act, 2021 seeks to bring to the sphere of age of marriages. 

Also read: Punjab and Haryana High Court's order that Muslim girls above 15 years of age are competent to enter into marriage merits scrutiny

In India, where customary laws have a social upper hand over meticulously articulated codified laws, why should the minor female be victimised in case of consensual sex and the boy be left to anguish inside Indian jails? In a nutshell, if the age of consent is to be lowered, then ground-breaking changes have to be made in the already complicated conundrum of codified and customary laws in India.

As recently pointed out by the Delhi High Court, the POCSO Act is meant to protect minors from sexual abuse, not criminalise consensual romantic relationships of young adults; necessary amendments in the age of consent are the need of the hour to meaningfully protect the interests of young adolescents.