Age of consent

ONE would be hard-pressed not to agree with the Law Commission’s recommendation of retaining the age of consent under the Protection of Children from Sexual Offences (POCSO) Act. There is merit in the argument that reducing it from 18 years to 16 might have a detrimental effect on combating child marriage and trafficking. The risks are far too many. That said, the concerns raised by various high courts and the Chief Justice of India (CJI) over the stringent 2012 law warrant an intervention. It has been observed that the purpose of the POCSO Act was to safeguard children from sexual exploitation, not to criminalise consensual relationships between young adults. To that effect, the law panel’s suggestion needs serious consideration. It has called for introducing ‘guided judicial discretion’ for sentencing in cases involving tacit approval of children in the 16-18 age bracket. The government would do well to initiate the process for making legislative changes.

Striking a balance between protecting children and respecting the autonomy of young adults is a complex matter. The age of consent, according to the CJI,

DY Chandrachud, poses difficult questions for judges. The presumption of the law, he has pointed out, is that there is no consent in the legal sense below the age of 18, regardless of whether consent is ‘factually present’ between the two minors. A petition in the Supreme Court, seeking decriminalisation of consensual sex, says such adolescents have the physiological, biological, psychological and social capacities to assimilate information and understand the risks.

Studies have shown that a considerable proportion of girls between 16 and 18 years of age refuse to testify against the accused. There have been demands to separate the age of consent from the age of marriage. The stakeholders need to take note of the key issues at stake.