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

In a recent report by the 22nd Law Commission, a significant debate over the criminalization of adolescent sexual activity has emerged. The Commission has expressed its opposition to reducing the minimum age of consent from 18 to 16 under the Protection of Children from Sexual Offences (POCSO) Act. This report was submitted to the Union Law Ministry.

The POCSO Act, enacted in 2012, currently considers all sexual activities involving individuals under 18 as criminal, even if both parties consent. The age of consent for sexual intercourse was raised from 16 to 18 years in November 2012. According to the POCSO Act, any sexual activity involving a person below 18, with or without their consent, is classified as ‘rape.’

This issue has garnered attention from various quarters, including the higher judiciary, civil society organizations, and activists, who have expressed concerns about the criminalization of consensual relationships among adolescents.

Chief Justice of India, D Y Chandrachud, raised concerns about the increasing number of cases filed under the POCSO Act, where consenting adolescents engage in sexual activity. He called upon the legislature to review the age of consent as per the 2012 Act.

Furthermore, several non-governmental organizations (NGOs) and activists have approached the courts to seek a review of the POCSO Act of 2012. Notably, a study conducted by ‘Partners for Law in Development’ on underage marriage cases in India from 2008 to 2017 revealed that most cases were initiated by parents against marriages that their daughters had arranged themselves. In such cases, husbands could face imprisonment for up to 20 years under the POCSO law. This has led to the prosecution of a significant number of consenting couples, including those who are married.

Another study conducted by the National Law School of India University revealed that in several cases, girls between the ages of 16 and 18 declined to testify against the accused under the POCSO Act.

Chief Justice D Y Chandrachud expressed grave concern over the current state of affairs, stating that the POCSO Act criminalizes all sexual activity for those under 18, irrespective of whether consent exists between the two minors in a particular case. This concern was voiced during a consultation on child protection organized by the Supreme Court committee on juvenile justice in December of the previous year.

In summary, the 22nd Law Commission has recommended against reducing the minimum age of consent from 18 to 16 under the POCSO Act. This Act, enacted in 2012, criminalizes all sexual activities for individuals under 18, even if there is mutual consent. The issue has raised concerns among the judiciary, civil society organizations, and activists, with Chief Justice D Y Chandrachud calling for a review of the Act. Additionally, studies have shown that the Act has resulted in the prosecution of consenting couples and reluctance among girls aged 16 to 18 to testify against the accused.

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