The recent debates around the alleged reduction of the age of consent have gripped civil society and social media. Some concerns were raised in an article by Flavia Agnes and Audrey Dmello (‘The faultlines of consent’, IE, August 9). The purpose of this article is to clear some misconceptions and to clarify what has been argued before the Supreme Court (this writer is assisting Indira Jaising, the amicus curiae, before the SC on the matter). While propriety demands that the case be argued before the Court, and not in the court of public opinion, I feel it necessary to clarify some of the arguments so that sensationalism can be avoided.
The case before the Supreme Court is about the age of consent. It has been pegged at 18 years by the Protection of Children from Sexual Offences Act, 2012 (POCSO) insofar as it criminalises consensual sexual activity between children between the age of 16-18, since it is against the order of puberty at which point sexual awareness is attained.
The case which has been pleaded here is not a blanket reduction of the age of consent, but to decriminalise consensual intercourse between children aged 16-18 by introducing a close-in-age exception. In recent times, there have been several cases of non-exploitative, non-abusive consensual relationships being criminalised. A significant proportion of cases being registered under the POCSO Act pertain to situations where girls leave their homes with their romantic partners, and cases of consensual sexual activity between teenagers. These cases — usually with a missing persons complaint or an FIR for rape — are usually initiated by the parents of these girls. After the teenage boy has been put through the rigmarole of the criminal process, branded as a criminal, the case usually falls on its face, with the girl turning hostile. The case is subsequently quashed, or the accused is released on bail. Such criminalisation is also much more common in cases of inter-caste and inter-faith relationships, where members of disadvantaged communities and religious minorities often find themselves at the wrong side of the law. Sometimes, while the Supreme Court has refused to quash the cases, they have stopped the execution of sentences by using its powers under Article 142.
Under common law, minors are now understood to have evolving capacities to make decisions, including decisions about their life and death. In India, the age of majority is understood as outlined in the Abduction Acts of England. However, in England, this understanding has changed. Post R v D [1984] 2 All ER 449, the current law, even in England, for medical decisions, recognises that the minor has sufficient understanding and intelligence to make a decision and that is not to be determined by reference to any judicially fixed age limit. From 1940 to 2012, the age of consent was 16 years. It was raised to 18, post the December 2012 gangrape case. No reasons were provided for this change, either by the Verma Committee or on the floor of either House when POCSO was brought in or during the 2013 Criminal Laws (Amendment) Act. Agnes and D’mello argue that 16 is an arbitrary age. But so is 18. Sixteen years, as the age of consent, was the law for over eight decades, and it recognised that teenagers are sexually active.
This criminalisation of consensual relationships, read along with the mandatory reporting provision, has also deterred teenagers from accessing sexual and reproductive health services and put their lives at risk. The National Health and Family Survey-5 noted that 45 per cent of teenage girls in the age group of 15-19 have had sexual intercourse. How can one protect the health interests of teenagers while also ensuring that abusive relationships are not decriminalised? The answer to this is simply allowing for a close-in-age exception to POCSO and IPC, in cases where relationships are non-abusive and non-exploitative. Agnes and Dmello seem to read this as a defense of abusive incestuous relationships, or relationships where the abuser is in a position of care or authority over the child. Such abuse is not defensible, and the arguments attack a fabricated imagination of the arguments advanced in Court.
On a fundamental principle of criminal law, there cannot be mens rea when the relationship is non-exploitative and non-abusive, and thus, trying to criminalise such a relationship serves no legitimate purpose. This is a case of balancing competing interests. Different people may come to different conclusions as to how such interests can be balanced. It is equally true that child sexual abuse is a serious problem, and POCSO addresses the issue of child sexual abuse. I say this as someone who was sexually abused as a child. However, to be so rigid in the application of law, and to use the law in a manner so as to curtail the fundamental right to access to healthcare, and personal autonomy of children between the ages of 16 to 18, who are otherwise capable of giving consent and are involved in consensual sexual relationships, is a fool’s errand.
The writer is a bioethicist and a lawyer at the Supreme Court
