The “age of consent” debate has re-emerged, this time in the Nipun Saxena and Anr vs Union of India PIL pending in the Supreme Court before a Bench comprising Justices Vikram Nath, Sanjay Karol, and Sandeep Mehta. The Court will examine whether the age of “consensual” sexual relationships, which is currently pegged at 18, needs to be reduced, under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
As per the POCSO Act, any sexual activity with a minor is a crime. Cases referred to as “consensual” under POCSO rarely involve sexual exploration among teens but on the contrary, reflect a darker and more complex social reality.
Most victims are from marginalised communities and trying to escape violent homes, sexual abuse by family members, discrimination, and/or threats of forced marriage. The age of the victim in some of these cases is as low as 12 years; the man is much older. The man promises her love and a better life. Having had sex with him, she believes the man and agrees to elope. Usually, a “missing person” complaint is lodged by the parents.
The police trace the couple, often already married and/or expecting a child. A case under the POCSO Act is registered, the man is arrested, and the girl is institutionalised. Once a case is filed, all hell breaks loose and the pressure from the accused’s family to withdraw the complaint mounts. For the girls, it is a Hobson’s choice — continue the pregnancy while confined in a shelter home until the age of 18 with the hope that the man and his family will accept her, or go back to the natal family where violence and forced marriage await her. In either scenario, the minor girl’s agency is crushed — first by the family and then by the law.
In a controversial judgment, the Calcutta High Court, while acquitting a man of penetrative sexual assault, commented that it was a case of “non-exploitative consensual sexual relationship between two consenting adolescents”. The victim was 14, and the man was 25. The victim claimed that she had married the accused and left her house of her own will. She expressed a desire to continue living with the accused. The court did not examine the home conditions that compelled a mere teenager to want to elope. The Supreme Court came down heavily on the High Court’s comments and restored the conviction but without a jail term, as this would cause further harm to the young woman, now aged 21. Trial court judges often acquit the accused or recommend leniency, terming these cases “Romeo-Juliet love” even where the age gap is significant.
According to NCRB data, as a result of mandatory reporting under the POCSO Act, cases of child sexual abuse rose from 8,541 in 2012 to 53,874 in 2021. In Mumbai alone in 2021, 524 cases of penetrative sexual assault were reported under the POCSO Act. A report by Praja Foundation found that in 54 per cent of these, the accused were romantic partners, friends, or individuals who had promised marriage and deserted the victim. Another 26 per cent were household employees, 12 per cent were neighbours, and 8 per cent were family members or guardians.
Meanwhile, India witnessed 1.6 million child marriages in 2022, with barely 900 cases registered as per the India Child Protection report. The drivers of child marriage have shifted from Brahminical patriarchy to poverty, lack of education, and fear of sexual violence. Poverty-stricken parents marry off their daughters young to safeguard them, not due to tradition but out of desperation.
What we are witnessing is a tragic paradox. Minor girls from marginalised backgrounds choose between the frying pan and the fire. They elope to escape violence, discrimination and sexual exploitation in their own home with the hope of a better life. But eloping exposes them to isolation, threats, and often, more violence by their partners, in addition to the trauma of facing the daunting criminal justice system.
Child rights activists are advocating that the age of consent be reduced to 16 years (except in cases involving coercion, and sexual relationships with persons in authority). Their demand is rooted in ensuring autonomy and agency for young girls — they argue that the criminal justice system severely impacts girls’ lives and offers them nothing.
But if we have to extend this logic, why stop at 16 and not 14? After all, in the West Bengal case, the victim was 14 years old, and our ground work reveals victims are sometimes as young as 12. Also, if the victim’s autonomy and the impact of the system are the issues at hand, why not extend the logic to cases of family members’ or guardians’ abuse, as most victims, even in those cases, do not wish to pursue legal action due to stigma or dependency?
More importantly, how are we going to establish “consent” and who will decide? Consent can be enthusiastic, reluctant, vitiated by fear, or extracted by manipulation. It can be revoked, misunderstood, or miscommunicated.
“Consent” is the most invoked defence in rape trials. Expecting a minor to understand and articulate consent is unrealistic. Judges, too, interpret it inconsistently, bringing in personal biases about morality and tradition.
The POCSO Act is a path-breaking piece of legislation with a victim-centric lens. However, the fault lines are in its implementation. In the West Bengal case, Justice Abhay S Oka stated, “The victim did not get any opportunity to make an informed choice. Society judged her, the legal system failed her, and her own family abandoned her.” He instructed the state to do what the Child Welfare Committee ought to have done right in the beginning: Provide the best possible care and protection for her and her child.
A blanket reduction of the age of consent, without a nuanced approach, risks pushing millions of vulnerable girls further into invisibility and harm. Lawmakers must consider the lived realities of India’s adolescent girls: Their vulnerabilities, the systems that fail them, and the real motivations behind “elopement”.
Dmello is the director and Agnes is the founder of Majlis, a legal centre for women and children. Views are personal
