The 22nd Law Commission of India under the chairmanship of Justice Rituraj Awasthi has opposed reducing the age of consent in India from 18 to 16 under the Protection of Children from Sexual Offences (POCSO) Act. The recommendation comes amidst a nationwide clamour for this change. The Law Commission’s report underscores the significance of maintaining the age of consent at 18 and highlights the complexity surrounding the interplay of consent and age. The report has been submitted to the Law Ministry, emphasizing their position on this critical matter. The ongoing debate prompts a closer examination of the existing legal framework and judicial pronouncement. In this article, we will delve into the age of consent laws in India and compare them with those of other countries. Additionally, we will explore why determining the age of consent is necessary and discuss the insights provided by the scientific community, including doctors and psychiatrists, regarding this critical legal aspect.

What is Age of Consent?

The age of consent is a crucial legal concept that determines the age at which an individual is considered legally competent to engage in sexual activities. It is a significant legal benchmark aimed at protecting minors from sexual exploitation and abuse, while also considering their capacity to make informed decisions regarding their own well-being. Each country has its own laws and regulations regarding the age of consent, reflecting the cultural, social, and ethical values prevalent within that society.

Why Determine the Age of Consent?

Determining the age of consent is essential for several reasons:

1. Protection of Minors: The primary purpose of setting an age of consent is to protect minors from sexual exploitation and abuse. It ensures that individuals below a certain age are not subjected to sexual activities that they may not fully comprehend or consent to.
2. Informed Decision-making: The age of consent recognizes that individuals need to reach a certain level of maturity and understanding to make informed decisions about engaging in sexual relationships.
3. Prevention of Coercion: Establishing a legal age of consent helps prevent situations where individuals may be coerced or manipulated into sexual activities due to a significant power imbalance or lack of understanding.
4. Legal Clarity: Defining a clear age of consent provides legal clarity, reducing ambiguity and assisting law enforcement agencies in protecting minors and prosecuting offenders.

Age of Consent in India

In India, the age of consent is determined by the age at which an individual can legally engage in sexual intercourse. The age of consent in India is 18 years. This means that any sexual activity with a person below the age of 18 is considered illegal and can result in criminal charges.

International Comparison of Age of Consent Law

Age of consent laws vary widely across countries. Here is a comparison with a few notable examples:

1. United States: In the United States, the age of consent varies by state, typically ranging from 16 to 18 years. Each state has the authority to set its own age of consent laws, which can sometimes lead to discrepancies.
2. United Kingdom: The age of consent in the UK is 16. However, there are specific laws regarding sexual activity with minors who are under 16, emphasizing the importance of consent and protecting vulnerable individuals.
3. Japan: Japan sets the age of consent at 13 years, but specific prefectures have local laws that set it at 16 or 18. There are also additional laws regarding the age difference between partners.
4. Germany: The age of consent in Germany is 14, but specific laws protect minors from sexual exploitation by adults in positions of authority.

Insights from the Scientific Community on Age of Consent

The determination of the age of consent often takes into account physical, psychological, and emotional factors. The scientific community, including doctors and psychiatrists, plays a critical role in providing insights into adolescent development and the age at which individuals can make informed decisions about their sexuality.

1. Cognitive Development: Cognitive abilities, such as the capacity to understand the consequences of one’s actions, foresee risks, and make informed decisions, are crucial factors in determining the age of consent. Research suggests that the prefrontal cortex, the part of the brain responsible for decision-making and impulse control, continues to develop into the mid-20s. Thus, a higher age for consent may be supported to account for this ongoing cognitive development.
2. Emotional and Psychological Maturity: Emotional and psychological maturity are vital aspects considered by experts. According to them individual needs to be of certain mature age to possess a certain level of emotional intelligence and stability to engage in intimate relationships responsibly.
3. Understanding of Risks and Consequences: Understanding the risks, consequences of sexual activity, and the ability to give informed consent are paramount. The age of consent should align with an individual’s capacity to comprehend and weigh these aspects.
4. Comprehensive Sexuality Education: Many experts advocate for comprehensive sexuality education that goes beyond just the legal age of consent. They believe that educating young individuals about healthy relationships, communication, consent, contraception, and sexually transmitted infections is crucial for their overall understanding of sexuality and informed decision-making.
5. Individual Assessment and Competency: Some professionals argue for an individualized approach, where a person’s competency to consent is evaluated on a case-by-case basis, considering their specific circumstances, maturity, and understanding.

Legislation and Judicial pronouncements regarding Age of Consent.

In colonial India during the late 19th centuries, a 10-year-old, Phulmoni Dasi was married to a 30-year-old husband named Hari Mohan Maiti.  She died as a result of her husband allegedly forcibly consummating the marriage. He was convicted in 1890 as a result of this case, sparking a series of legal reforms. The social reform movement, which included figures like Behramji Malabari and Har Bilas Sarda, used Phulmoni Dasi’s case to advocate for raising the age of consent. They argued that young girls like Phulmoni were suffering due to early marriages, and increasing the age of consent was essential to protect their health and well-being. The debate reached its peak with the British colonial government finally enacting the Age of Consent Act in 1891. Phulmoni Dasi’s story served as a catalyst for social reform and legislative change, leading to a critical shift in how society viewed age of consent.

Following is the overview of the evolution of the age of consent laws in India from that point onwards:

Age of Consent Act, 1891:

Enacted during British colonial rule, this act raised the age of consent for girls from 10 to 12 years, aiming to provide some protection against early and potentially harmful marriages.

Child Marriage Restraint Act (Sarda Act), 1929:

This act, also known as the Sarda Act, further raised the age of consent for girls from 12 to 14 years. It was a response to continued child marriages and sought to curtail the practice through legal means.

The Child Marriage Restraint (Amendment) Act, 1978:

The act was a response to persistent child marriage practices and raised the age of consent for girls from 14 to 18 years. This amendment was a significant step toward aligning the age of consent with the legal age for marriage for girls.

The Prohibition of Child Marriage Act, 2006:

This act repealed the Child Marriage Restraint Act, 1929, and strengthened the legal framework against child marriage. It retained the age of consent for girls at 18 years, aligning with the legal age for marriage.

Protection of Children from Sexual Offences (POCSO) Act, 2012:

Although not directly related to the age of consent for marriage, the POCSO Act was a significant legislative development aimed at protecting children, including setting a legal age of consent for sexual activities at 18 years.

Criminal Law (Amendment) Act, 2013:

In the aftermath of the Nirbhaya case, amendments were made to the Indian Penal Code, including raising the age of consent for sexual activity to 18 years to ensure consistency with the Prohibition of Child Marriage Act.

However, in December of the previous year, Chief Justice of India Dr D.Y. Chandrachud suggested that the legislative branch should take into account increasing apprehensions regarding the age of consent set at 18 years. This is because the POCSO Act deems all sexual activities as criminal for individuals under 18 years old, regardless of factual consent between two minors.

In the case of Shambu Thilak v State of Kerala and Others, the Kerala High Court dealt with a situation where a 17-year-old girl and a 20-year-old boy engaged in consensual sexual activity. The presiding judge viewed this as a love relationship rather than an act constituting a significant societal crime or displaying extreme perversion or depravity. Notably, the girl expressed her desire for the prosecution not to continue, resulting in the dismissal of the case.

In the case of State v. Suman Dass, as per the ruling by a Delhi District Court judge, it was stated that the law should not prevent young individuals from engaging in such exploratory experiences. The judge argued that if such an interpretation were permitted, it would imply that every person under 18 is controlled by the State regarding their body, denying them the natural rights related to their own physical being. The assertion that the Act criminalizes all sexual activity among adolescents was dismissed by the judge, and this decision was later affirmed by the Delhi High Court as well.

In the case of Ravi @ Virumandi v State, the Madras High Court expressed anticipation for the legislature to promptly lower the age of consent, presently set at 18 years under the Protection of Children from Sexual Offences Act (POCSO) Act.

In the case of State of Karnataka vs Basavraj S/O. Yellappa Madar, the Karnataka High Court in a bench led by Justices Suraj Govindraj and G Basavaraja noted instances where girls under 16 had fled and engaged in sexual activity. The court stressed the need to reexamine the age of consent in light of these circumstances. Additionally, the High Court urged the Law Commission to reconsider the age of consent within the Protection of Children from Sexual Offences Act.

Conclusion

The age of consent stands at the intersection of legal, social, and scientific domains, aiming to strike a delicate balance between safeguarding minors and acknowledging their evolving autonomy. The stance of the 22nd Law Commission underscores the nuanced nature of this debate in the Indian context. As societies continue to grapple with changing norms and emerging movements, the dialogue surrounding the age of consent remains dynamic and requires thoughtful consideration. Finding the right equilibrium to ensure the well-being and agency of young individuals is an ongoing imperative, demanding continuous evaluation, dialogue, and an evidence-based approach to legislative decisions. Ultimately, the age of consent remains a pivotal marker, symbolizing the commitment of a society to protect its vulnerable members while respecting their rights and capacity to make informed choices as they transition into adulthood.

– By Advocate Deeksha Rai