What should the age of consent for sex be? 18 or 16 years? This question is being debated in courts and parliament. Should the age of consent be lowered? However, the government has clarified in parliament that the age will not be reduced.
On Thursday, during a session in the Rajya Sabha, NCP MP Vandana Chavan urged the government to amend the POCSO Act and lower the age of consent for sex. She pointed out that several courts have stated that the POCSO Act aims to protect minors from sexual violence, not criminalize consensual romantic relationships among teenagers.
POCSO stands for Protection of Children from Sexual Offenses Act, implemented in 2012. Under this law, individuals under 18 are considered 'children.' It stipulates the age of legal consent as 18 years. If a girl under 18 engages in consensual sexual activity, her consent is deemed invalid. In such cases, the boy can be arrested and prosecuted for rape.
Initially, the POCSO Act did not include the death penalty. In 2019, an amendment introduced the provision of the death penalty. Under this law, a life sentence means the convict will remain in prison for life.
On November 13, in a case concerning consensual relations with a 17-year-old girl, the Delhi High Court made a significant remark while granting bail to the boy. The High Court stated that the POCSO Act's purpose is to protect children from sexual exploitation, not to criminalize consensual romantic relationships among teenagers.
Earlier, on November 5, the Karnataka High Court also suggested reconsidering the age. A two-judge bench of the Karnataka High Court indicated that there have been numerous cases of romantic relationships and consensual activities with 16-year-old minors. It advised the Law Commission to re-evaluate the age of consent.
On December 10, Chief Justice D.Y. Chandrachud expressed a similar sentiment at an event, urging Parliament to reconsider the age of consent under the POCSO Act.
The story begins in 1889. A girl named Phulmoni Das, aged 10, and her husband, aged 35, were involved in a tragic incident when the husband forcibly consummated their marriage, leading to Phulmoni's death. Two years later, Rukhmabai, aged 11, died in a similar event.
At that time, the age of consent was 10. These incidents prompted British India to establish stricter laws. In 1892, the age was increased from 10 to 12. This law applied to all women.
After independence, concerns were raised about the adverse effects of early pregnancy. As a result, in 1949, the age was raised to 15. In 1983, a criminal law amendment increased the consent age to 16.
With the introduction of the POCSO Act in 2012, the age of consent was further increased to 18, aiming to protect minors from sexual abuse. It applies to both boys and girls, meaning any sexual activity with individuals under 18 is criminalized.
While the legal age of consent is 18, complexities arise when it comes to marriage.
When is sexual intercourse considered rape? This is detailed in Section 375 of the Indian Penal Code (IPC), describing seven scenarios where intercourse is deemed rape.
However, there is an exception in Section 375. If a wife is underage, consensual or forced intercourse by the husband is not considered rape unless the wife's age is below 15, in which case the husband faces up to 2 years of imprisonment or fines or both.
Under Muslim Personal Law, once a boy and a girl reach puberty, they may marry. Thus, legal adulthood is not necessary for marriage among Muslims.
Following the 2012 Nirbhaya gang rape, the Criminal Law Act's amendment was examined by a committee headed by Justice J.S. Verma.
The committee recommended in its report that the age of consent for sex be kept at 16 years. However, the government did not accept this recommendation.
In contrast, the statistics of pre-18 sexual activities in India are surprising. According to the National Family Health Survey-4, 11% of women had sexual relations by age 15, and 39% by age 18.
Meanwhile, the National Family Health Survey-5 revealed that among women aged 20–24, 2.3% had sexual relations by age 15, while 39% had had sexual encounters at some point.
Another shocking statistic is that a significant number of POCSO Act accused are acquitted. According to the National Crime Records Bureau (NCRB), in 2021, trials for 15,748 POCSO Act cases were completed, resulting in 5,079 convictions and 10,099 acquittals. This indicates that out of every 100 cases under the POCSO Act, 64 did not result in convictions.
There are several reasons for this. Often, when a girl's family discovers her relationship with a boy, they file a case against the boy. A 2018 study by Bangalore's National Law University found that many girls aged 16 to 18 retract their statements against the accused.
