Contentious consent

NEW DELHI: The Supreme Court recently pointed out that judges are not expected to preach or express personal views as it took exception to remarks made in a Calcutta High Court judgement that advised adolescent girls to ‘control sexual urges’. A Bench of Justices took suo moto cognisance of the observations made in the High Court judgement which dealt with a Protection of Children from Sexual Offences Act (Pocso) case and mentioned that they were ‘highly objectionable and completely unwarranted.’

The recent developments have reignited a discourse across India with regard to the age of consent on consensual sex (18 years in India), and the prejudice in addressing the parties involved. In August, the Supreme Court had sought a response from the Centre on a PIL that sought a direction to decriminalise the law on statutory rape, which is often invoked against 16 to 18-year-old adolescents for indulging in consensual sex.

The PIL had pointed out that there are several cases involving boys over the age of 18 years engaging in consensual sex with girls who are not yet 18 years old. The boys are tried for rape if a complaint is lodged by the girls’ parents. Under the Pocso Act, 2012, consent of a child who is not yet 18 years old is immaterial. Any individual attempting to engage in a sexual act with a child under 18 is guilty of sexual assault.

Since 2007, many south Asian nations have adopted a law, colloquially referred to as the Romeo-Juliet law, to address cases of consensual sex between minors and young adults. The law protects the boy from arrest if the age difference between him and the girl who have engaged in consensual sex is under four years.

With over 253 million adolescents, India has the largest population of teenagers in the world. Our courts have acknowledged that a relationship amongst minors, or minors with young adults is a result of natural biological attraction. Just take a look at the numbers. Per the National Family Health Survey (NFHS-5), more than 39% of women said that they had sex before they turned 18, while 10% in the 25-49 age group had done so before they were 15.

Research conducted by an NGO regarding 7,064 Pocso court judgements that were delivered between 2016 and 2020 in three states, showed that nearly half of the cases involved girls between 16 and 18. And 1,715 cases, or 25% of them, fell within the ‘romantic’ category. Acquittals were the order of the day, with 1,609 or 93.8% being dismissed, while convictions were the exception as only 106 cases (6.2%) fell within the latter.

The Pocso law was introduced a decade ago to deal with the high incidence of child sexual abuse in India – 53% as per a 2007 government study. What this also entailed is increasing the age of consent from 16 to 18, which branded millions of adolescents as criminals for engaging in sex.

Activists have drawn attention to how many parents are abusing the Pocso law to deter girls from being in inter-caste or inter-faith relationships. The criminalising of consensual sexual activity among adolescents has resulted in long-lasting damage for the parties involved and choked up India’s overburdened criminal justice system. Unicef has nudged India towards decriminalising adolescent sex, urging the need for striking a balance between protection and respect for the evolving autonomy of adolescents.