Chief Justice of India DY Chandrachud has urged the parliament to deliberate on the growing concerns around the ‘age of consent’ under the Protection of Children from Sexual Offences Act (POCSO Act).
“The POCSO Act criminalises 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,” Justice Chandrachud said. “The presumption of the law is that there is no consent in the legal sense below the age of 18.”
Justice Chandrachud made the remarks during his speech at the National Annual Stakeholders Consultation on Child Protection organised by the Supreme Court Committee on Juvenile Justice.
The misuse of POCSO
The issue of lowering the age of consent stems from the misuse of stringent POCSO laws by parents when they disapprove of adolescent relationships.
Studies have shown that many POCSO cases involve girls’ families filing sexual assault charges where they don’t approve of relationships. Half of POCSO cases are accounted for by the 16-18 age bracket, reports say.
In view of the ground realities, legal experts have pitched for lowering the age of consent from 18 to 16. The Delhi High Court observed recently that the POCSO was enacted to protect children from sexual assault and not to punish consenting romantic relationships.
Age of consent and age of marriage
This debate also throws up complicated challenges since the age of consent for sexual relationships and the age of marriage would then be in conflict. In India, sexual relations are most often correlated with marriage and so, if the parliament decides to revise the age of consent, it would need to ensure that India’s marriage laws are not contradictory.
There will be difficult considerations before the parliament especially since the Narendra Modi government had last year introduced legislation to consider raising the marriage age for girls from 18 to 21. The Bill was built on the assumption that raising the age of marriage would eradicate child marriages in the country as well as help women be independent as they could finish graduation before tying the knot.
However, many child rights and women’s rights activists had pointed out gaps in the logic, highlighting examples of how the move could be a setback for girls instead.
Criminals still escaping POCSO
Meanwhile, Justice Chandrachud stressed that the main problem with addressing child sexual assault in India is reporting. He said that parents still hesitate to file cases due to the stigma attached with sexual abuse. They also choose silence since perpetrators of the atrocity are often close family members.
Justice Chandrachud also said that it is an error to assume that only the girl child can be or is more likely to be sexually assaulted. Such assumptions, he said, do not encourage parents to report crimes against boys.
“Research has consistently demonstrated that both girls and boys are at equal risk for sexual abuse and that the perpetrator is known to the victim in an overwhelming number of cases, and may be an immediate family member, caretaker or neighbor,” Justice Chandrachud said.
The CJI also said that mandatory reporting under the POCSO act should not be reason to delay or deny medical care to those seeking it.
India’s different legal ages
India has a complex benchmark for attaining adulthood. They can vote at 18, but boys may marry at 21 and girls at 18, both boys and girls may consent to consensual sexual relations at 18 (in a society where extra marital sex is considered taboo). Indians may legally drink at 12, 21, 23 and 25. They can drive motor cycles with engine capacity not exceeding 50cc after attaining the age of 16 but they may not drive motor vehicles before 18.
Many of these age barriers are illogical and counterintuitive.
Meanwhile studies have established that children are hitting puberty earlier than before and besides, they are inundated by all kinds of content in the media that exposes them to adult material soon. To penalise young adults for romantic relations could have undesirable consequences.
It is time that the legislature should address the difficult questions surrounding adulthood in India.