India should consider lowering the age of consent

The fact remains that many of the cases of sexual assault reported to the police dealing with the 16-18 years-old children are consensual in nature and are generally reported at the behest of girl’s parents who disapprove of the teenagers’ conduct

Recently, the Madras High Court (HC) acquitted a boy accused of aggravated penetrative assault under the Prevention of Children From Sexual Assault (Pocso) Act and kidnapping under the Indian Penal Code (IPC). While dealing with the same case, the court also asked the competent authorities to reconsider the definition of child and reduce the age of consent from 18 years to 16. The 17-year-old girl had allegedly eloped with the accused, her male schoolfriend, and both were traced after six months, living together. During the trial, the girl turned hostile, leading to the acquittal of the boy, whose age is not mentioned in the judgment.

Many countries have 16 years or below that as the age of consent. Most of the American states, Europe, Japan, Canada, Australia, China and Russia fall into this category(Shutterstock)

The court observed that it was possibly a case of mutual consent and teenage attraction, not an uncommon occurrence at such an age, and, therefore, the age of consent should be reduced from 18 years to 16, so that the boy accused of the crime does not have to undergo punishment under the Pocso Act.

The court’s suggestion to lower the age of consent is a welcome step; the government should consider it seriously.

The fact remains that many of the cases of sexual assault reported to the police (under the Pocso Act and other laws) dealing with the 16-18 years-old children are consensual in nature and are generally reported at the behest of girl’s parents who disapprove of the teenagers’ conduct. Therefore, the most relevant question to be addressed is whether a teenage girl or boy of this age has the capability to give “free consent”. Records show that in most cases in this age group, girls turn hostile because the sexual act was not against their will and they were not allured or induced into indulging in the act. It has also been observed that due to a change in the sociocultural environment in recent decades, teenagers are sensible enough to understand the implications of their conduct.

A few other provisions of the law are also relevant to the situation. First, our laws do not consider any action by a child under the age of 7 an offence. Second, even if the child is between the ages of 7 and 12, but has not attained sufficient maturity to judge the nature and consequences of his conduct, his act would not be considered an offence. The grey area of the age category 7-12 years aside, it is implied that a child above 12 years of age develops sufficient understanding of the implications of an offence. As a corollary, this assumption of attaining maturity, with an additional margin of four years — as is being considered now — may also be applied in cases of granting “free consent”? One may also note that the Child Labour (Prohibition and Regulation) Act defines a child as a person under the age of 14, and, therefore, those above 14 can legally be employed in otherwise prohibited occupations and processes.

Many countries have 16 years or below that as the age of consent. Most of the American states, Europe, Japan, Canada, Australia, China and Russia fall into this category. Therefore, the rights of the child (up to 18 years of age) might be protected in accordance with the UN Convention on the Rights of the Child, but the age of consent can safely be reduced from 18 to 16.

The court also suggested the need to define consensual sex as a separate category of crime under a more liberal provision. This may not prove to be a very useful step, as one of the main reasons for acquittals in such cases is victims turning hostile. Therefore, if an act is committed with mutual consent in the 16-18 years of age category, it need not be made punishable at all. However, the issue may require broader deliberations. Taking out such cases from the purview of the penal law will also help the police divert its attention towards more serious and complex cases. Furthermore, the National Crime Records Bureau data reveals that about half of the Pocso Act cases fall in the category of 16-18 years age group. Removing cases of consensual sex under this category can help us get a better picture of sexual assault cases.

RK Vij is a senior IPS officer in Chhattisgarh

The views expressed are personal