18 or 16? Why is there a debate on the age of consent in India?

In a post-MeToo world, consent is important. However, there are many complexities to it. One of those complexities is age. And that’s the issue that has been making headlines across the country. There has been a growing clamour in Indian society about reduce the age of consent in the nation. The matter of age of consent has only become more pronounced with the Law Commission submitting its report on the same to the law ministry on Wednesday. Some reports state that the 22nd Law Commission in its report has opposed reducing the age of consent in India from 18 to 16 under the Protection of Children from Sexual Offences (POCSO) Act. An official, who is aware of the developments, was quoted as telling New Indian Express: “The Commission made several recommendations in the report. The panel is not in favour of lowering the minimum age of consent from 18 to 16 under the POCSO Act.” As the debate rages, we take a look at the law, why people have been asking to lower the age of consent and what’s the situation in other countries. Age of consent, explained Before we deep dive into the reasons why many have been asking for a change in the age of consent, let’s understand what it means. In India, under the POCSO Act, all sexual activity under the age of 18 is considered a crime, even if there was consent between the two parties. Incidentally, until November 2012, the age of consent was 16 and was only raised to 18 after the law came into act. The law says any sexual activity with or without the woman’s consent when she is below 18 constitutes rape. Anyone below 18 is considered incapable of giving consent. Calls to lower the age of consent With the passage of time, however, activists and eminent jurists have seen a flaw in the matter and have asked that the age of consent be reduced to 16. Last December, the Chief Justice of India DY Chandrachud appealed to Parliament to have a relook at the issue of age of consent, stating it posed difficulties for judges examining cases of consensual sex involving adolescents. “In my time as a judge, I have observed that this category of case poses difficult questions for judges across the spectrum. There is a growing concern surrounding this issue which must be considered by the Legislature,” the CJI said while addressing a national stakeholders’ consultation on the POCSO Act, which completed 10 years. In June this year, the Madhya Pradesh High Court had a similar request. Justice Deepak Kumar Agarwal urged the government to reduce the age of consent to 16 to avoid the “injustice” of adolescent boys being treated as criminals. “Nowadays, every male or female near the age of 14 years, due to social media awareness and easily accessible internet connectivity, is getting puberty at an early age,” the judge said. “Boys and girls are getting attracted to each other owing to this early puberty,” he said, ultimately “resulting in consensual physical relationships.” “In these cases, male persons are not at all criminal. It is only a matter of age when they come into contact with female and develop physical relationships,” he said. A month later, even the Bombay High Court chimed in. A single bench of Justice Bharati Dangre in a 10 July judgment expressed concern over the increasing number of criminal cases under provisions of the POCSO Act. She noted that the age of consent was “probably one of the highest ages globally”. “Sexual autonomy encompasses both, the right to engage in wanted sexual activity and right to be protected from unwanted sexual aggression. Only when both aspects of adolescent’s rights are recognised, human sexual dignity can be considered to be fully respected,’’ said the High Court. Even in 2019, while overturning the conviction of a teenager, the Madras High Court’s Justice V Parthiban said that a relationship amongst minors or minors with young adults was “not unnatural but a result of natural biological attraction” and recommended a revision of the age of consent. [caption id=“attachment_13181552” align=“alignnone” width=“640”] Currently under the POCSO Act, all sexual activity under the age of 18 is criminalised. This means that Anyone below 18 is considered incapable of giving consent. Image used fore representational purposes/Reuters[/caption] A case to lower age of consent But won’t lowering the age of consent to 16 be more detrimental to teenagers in India? Not exactly, says the data and even activists. Many argue that by not reducing the age of consent, India is being ignorant to societal realities, which results in criminalising adolescent sexuality rather than focusing only on child sexual abuse. Activists argue that the authorities have to wake up to the fact that India’s adolescent population is sexually active. And the data supports them. The National Family Health Survey (NFHS-5) – the most comprehensive survey of households by the government – revealed that more than 39 per cent of women have had sex before they turned 18 and 10 per cent in the 25-49 age group said they had done so before they were 15. Child rights activists also argue that parents are using the criminal justice system to control girls’ sexuality. Enfold Proactive Health Trust, a child rights charity, revealed that 24.3 per cent of POCSO cases in Assam, Maharashtra and West Bengal in the years between 2016 and 2020 were ‘romantic cases’ and that in 87.9 per cent of these cases, the girl ‘victim’ admitted to being in a romantic relationship with the accused. The Quint has reported that a 2018 study by the Centre for the Child and the Law at National Law School of India University also revealed that romantic cases constituted over 20 per cent of cases in Andhra Pradesh, Delhi, Maharashtra, and parts of Karnataka. But it’s a grey matter and there are many who believe that lowering the age of consent is a tricky and slippery proposition. Many argue that several victims admit to consensual relationships because of coercion, threat and influence by the accused. Some are also of the opinion that lowering the age of consent is support to pre-marital sex. Countries and age of consent While India continues its debate on lowering the age of consent, a vast majority of countries have their ages in the range of 14 to 16 years. Children as young as 14 are considered able to give consent to sex in Germany, Austria, Hungary, Italy, and Portugal. In England and Wales, it is 16 years. Earlier in June, Japan raised the age of consent from 13 to 16 years . It was the first change change to its criminal code on sexual offences in nearly a century. Countries such as the Philippines and Angola that have the lowest age of consent at 12 years. On the other end of the spectrum is Bahrain and South Korea that have set the age of consent at 21 and 20 respectively. With inputs from agencies