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Picture Courtesy:  THEHINDU

Context

The Supreme Court urged the Union government to amend the POCSO Act to exempt genuine consensual adolescent relationships, acknowledging the law's misuse and reigniting the 'age of consent' debate.

What is Age of Consent?

 The 'age of consent' is the minimum age at which a person is legally considered capable of consenting to sexual activity. 

Its primary purpose is to protect children from sexual exploitation and abuse. 

Any sexual activity with a person below this age is considered statutory rape, regardless of their willingness to participate.

Current Legal Framework: Protection of Children from Sexual Offences (POCSO) Act 2012

Definition of a Child: The Act defines a "child" as any person below the age of 18 years.

Age of Consent: Legal age for sexual consent in India is set at 18 years. Any sexual activity with a person below this age is considered a criminal offence (statutory rape), regardless of whether consent was given. This strict liability approach is gender-neutral.

Rationale: The law was designed to provide a strong protective shield for children, presuming that anyone below 18 lacks the emotional and cognitive maturity to give informed consent to sexual activity.

Arguments for Lowering the Age of Consent

Proponents argue that the stringent nature of the POCSO Act has led to unintended consequences, necessitating a re-evaluation of the age of consent. 

Recognition of Adolescent Autonomy

Advocates assert that 16- to 18-year-olds are mature enough to make informed decisions about their bodies, arguing that denying this right infringes upon their constitutional liberties, privacy, and dignity.

Preventing Criminalization of Consensual Romance

"Romeo and Juliet" Cases: Current laws often treat consensual romantic relationships between teenagers as "statutory rape," even when both parties are close in age and the relationship is voluntary.

Targeting Minorities: Parents sometimes misuse these laws to punish adolescents for inter-caste or inter-religious relationships, effectively using the state to enforce social control.

Legal Disparities: In India, a 16-year-old can be tried as an adult for "heinous" crimes under the Juvenile Justice Act, yet is considered incapable of giving sexual consent under the POCSO Act.

Biological Maturity

Proponents note that physiological maturity and the onset of puberty are occurring earlier than in previous generations, making the 18-year threshold disconnected from biological reality.

Improving Public Health Access

Mandatory reporting laws deter adolescents from seeking essential sexual and reproductive health services, such as contraception or STI testing, due to fear of legal repercussions for themselves or their partners.

Global Legal Standards

Many developed nations, including the UK, Canada, and several European countries, set the age of consent at 16 or lower, utilizing "close-in-age" exemptions to protect teenagers from criminal prosecution for peer-to-peer relationships.

Arguments Against Lowering the Age of Consent

Opponents caution that reducing the age of consent could undermine child protection efforts and expose children to greater risks.

Compromising Child Protection

Lowering the age could make it easier for sexual predators to exploit vulnerable children by claiming the relationship was consensual.

The 22nd Law Commission of India recommended retaining the age of 18, arguing that a reduction would negatively impact the fight against child marriage and child trafficking.

A firm age limit of 18 serves as a clear legal deterrent against the exploitation of minors.

Adverse Health and Social Consequences

Early sexual activity is associated with higher risks of sexually transmitted infections (STIs), unwanted pregnancies, and adverse mental health outcomes.

In a patriarchal society, lowering the age could disproportionately harm girls, potentially legitimizing early marriages and leading to them dropping out of school. According to the National Family Health Survey-5 (2019-21), 23.3% of women aged 20-24 were married before 18. 

Way Forward 

Introduce Nuanced Legal Provisions

Amend the POCSO Act to include "close-in-age exemptions". This would differentiate between predatory abuse by adults and consensual relationships between similarly-aged adolescents, as suggested by the Law Commission and the Supreme Court.

Strengthen Comprehensive Sexuality Education (CSE)

Implement age-appropriate, medically accurate CSE in schools. An informed adolescent is better equipped to understand consent, healthy relationships, and sexual health. Currently, the implementation of CSE in India is patchy and faces cultural resistance.

Promote Judicial Discretion and Rehabilitation

Allow judges greater flexibility to assess the context of cases involving adolescents. The focus should shift from punitive punishment to counselling and rehabilitation for teenagers in consensual relationships.

Improve Data Collection

Mandate the National Crime Records Bureau (NCRB) to disaggregate data to clearly distinguish between predatory POCSO cases and those involving consensual relationships. This will enable evidence-based policymaking. 

Conclusion

Reforming the POCSO Act requires a balanced approach to the age of consent. It must protect minors while allowing judicial discretion and exemptions for closely-aged adolescent relationships, supported by comprehensive educational programs.

 Source: THEHINDU