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While the Supreme Court and several High Courts have underlined concerns over criminalisation of adolescent sex, the 22nd Law Commission of India is not in favour of lowering the age of consent for minors, The Indian Express has learnt.
The Commission is set to release its report on the minimum age of consent under the Protection of Children from Sexual Offences (POCSO) Act. Under the 2012 legislation, the minimum age of consent is 18.
Sources indicated that the Commission is likely to recommend awareness measures on adolescent health care including making sex education mandatory and teaching the basics of consent under the POCSO Act in schools.
In December 2022, Chief Justice of India D Y Chandrachud asked lawmakers to look into “growing concern” over criminalisation under the POCSO Act of adolescents who engage in consensual sexual activity.
In his keynote address at the National Annual Stakeholders Consultation on Child Protection, CJI Chandrachud said, “As you are no doubt aware, the POCSO Act symbolises all sexual activity for those under the age of 18, regardless of whether consent is factually present between the two minors in a particular case. In my time as a judge, I have observed that this category of cases poses difficult questions for judges across the spectrum.”
Courts have routinely flagged cases of minors between the age of 16 and 18, who eloped or engaged in consensual sexual activity, being booked under the POCSO law on a complaint from the girl’s parents. While these cases do not necessarily result in conviction of the minor boy, the stringent law results in denial of bail and protracted incarceration.
Why the worry
Minors aged between 16 and 18 who engage in a consensual act that may come under the definition of sexual activity under the law run the risk of being booked under POCSO. While these cases of adolescent sex may not necessarily result in conviction of a minor boy, the law is such that it could result in denial of bail and prolonged detention.
In December last year, a 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.
Two key issues – the government’s proposal to increase the minimum age of marriage for women and the incongruity between Muslim personal law and the POCSO law – are said to have weighed on the Commission’s decision.
Under the law, the age of consent under the POCSO Act, the age of majority and the minimum age of marriage for women is common – 18 years.
In December 2021, the Union Cabinet cleared a proposal to raise the legal age of marriage for women from 18 to 21 years to bring it on par with men. The government cited gender neutrality, risks of early pregnancies and overall empowerment of women as reasons to increase the age of marriage.
While this proposal is pending, the Law Commission, sources said, is of the view that lowering the age of consent may be counterproductive for women.
Under Muslim personal laws, marriage for girls is at puberty, which is presumed to be at age 15. This gap between Muslim personal laws and the special legislation is prohibiting child marriage.
In February this year, Assam arrested over 2,000 men, many in a statewide crackdown on child marriages. The arrests came in the backdrop of a growing debate on the minimum age of marriage for Muslim girls. Lowering the age of consent for sexual activity under POCSO could potentially have an impact on this aspect too.
The Commission, headed by Justice Ritu Raj Awasthi, former Chief Justice of the Karnataka High Court, is expected to submit its report to the government this month.
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