Consensual Sex Between Minors in India: A Case for legalization

By Suprateek Neogi
Suprateek Neogi is a fourth-year student at Rajiv Gandhi National University of Law, Punjab studying Law and specializing in Business Laws.

The law in India relating to sexual acts with minors has been specialized in recent years with the Protection of Children against Sexual Offences, 2012 (“POCSO”). Earlier, the Indian Penal Code, 1860 (“IPC”), which deals with general substantive criminal law, was used for persecuting the accused for committing crimes against children.

Unfortunately, sexual abuse of children has only recently been publicly acknowledged as a problem in India, which is why POCSO has been a welcome development in India. Despite being well-intentioned and detailed, POCSO has one lacuna. It does not differentiate between sexual acts between consensual minors and sexual acts between minors and adults. [1]

The last decade, from 2005 to 2015, saw an increase of 529% in total reported crimes against children and an increase of 408% in cases of ‘penetrative sexual assault’, including ‘aggravated penetrative sexual assault’.

POCSO has led to increased reporting of crimes against children and faster litigation for ensuring justice to the victims. In 2016, 37,269 cases of sexual offences against children (36,022 under the POCSO Act and 1,427 under Section 377 IPC) were registered, which constitutes 34.8% of total crimes against children. [2] This increase in reporting has been due to increased awareness and a specialized Act for the protection of children, i.e., POCSO. POCSO is a special law which criminalises a range of acts against children including child rape, harassment, and exploitation for pornography. The law also mandates the setting up of Special Courts to facilitate speedy trials in cases of child sexual abuse. [3]

Without a doubt, the passing of POCSO has been a significant and progressive step in securing children’s rights and furthering the cause of protecting children against sexual abuse. POCSO is often applied in relation with related legislation, the Prohibition of Child Marriage Act, 2006, to clamp down on child marriages.

The letter and spirit of the law, which defines a child as anyone less than 18 years of age, is to protect children from sexual abuse. The intent of the legislature in passing this law was to make special provisions for punishing sexual offences against children.

POCSO, however, criminalizes all sexual behaviour for individuals under the age of 18. In today’s day and age, consensual sex between minors has become an accepted norm, at least amongst teenagers living in urban areas. Despite that, legislation has been slow to stay in tune with the times. Hence, criminalising all sexual behaviour for individuals less than 18 years of age can be problematic. For instance, considering a child of 17 years of age as a criminal deserving rigorous imprisonment because he had consensual sexual relations with another 17-year-old is not an appropriate measure. Even well-meaning laws like POCSO can have unintended negative consequences.

Apart from an outdated moral viewpoint being imposed on children, another reason why consensual sex between minors has been in a legal grey area is because of what the Indian law considers as valid consent. The Supreme Court of India, in the case of State of Madhya Pradesh v. Balu (2004) has held that consent given by a minor is not considered to be valid consent in the eyes of law. [4] This has been reiterated in many cases of the Supreme Court and subordinate courts.

In today’s day and age, the abovementioned rationale for the judgement, or ratio decidendi, [5] should not be extended to consensual sex between minors. Article 12 of the Universal Declaration of Human Rights (“UDHR”), of which India is a signatory, holds that everyone has the right to the protection of the law against arbitrary interference with his or her privacy. Consensual sexual acts fall under the purview of right to privacy of a human being. This has been recognized under Article 21 by the judgement of a nine-judge bench of the Supreme Court in the landmark case of Justice Puttaswamy v. Union of India (2017). [6] Considering consensual sexual acts as a crime violates the right to privacy of the minors.

Recently, Madras High Court has been passing progressive judgements, setting examples for its contemporary High Courts. This includes the case of Arunkumar v. The Inspector General of Registration (2019). [7] The High Court held that a marriage solemnized where at least one of the parties is a transgender person, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same. 

In the case of Sabari v. Inspector of Police (2018), the Madras High Court has said in passing, or as obiter dicta, [8] that consensual sexual activity between minors above the age of 16 years of age should not be considered to be a criminal activity. [9] Since it was said as obiter dicta, it cannot be enforced as law, but it has persuasive value for future judicial and legislative decisions. The Court considered this a logical conclusion from a consideration of ground realities and post-modern moralities of this decade.

Many countries have 16 years or below that as the age of consent for sexual relations. Many American states, some countries in Europe, Japan, Canada, Australia, China, and Russia all 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. [10]

The High Court had suggested as an obiter dicta that the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18.  Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act. Such sexual assault, if it is so defined, can be tried under a new provision. This was said in passing, or as obiter dicta by the High Court, and does not construe as the law before passing of the appropriate Amendment to POCSO.

The said provision can be added as an Amendment to distinguish the cases of a teenage relationship after the age of 16, from the cases of sexual assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. This is so that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and has crossed the age of presumable infatuation or innocence.

This progressive judgement of the Madras High Court shows that Indian society is now truly modernizing and the law, albeit slowly, is catching up.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

Sources

[1] Section 2(d), Protection of Children against Sexual Offences, 2012.
[2] Ali, Bharti et al. “Implementation of the POCSO Act: Goals, Gaps and Challenges - Study of Cases of Special Courts in Delhi & Mumbai (2012 - 2015)”. HAQ: Centre for Child Rights (2017). Last accessed date November 18, 2019.  
[3] Section 28, Protection of Children against Sexual Offences, 2012.
[4] State of Madhya Pradesh v. Balu, SC Appeal (Crl.) 1273 of 2004.
[5] “Ratio Decidendi”. Oxford Reference. https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100405351.
[6] Justice Puttaswamy v. Union of India, (2017) 10 SCC 1.
[7] Arunkumar v. Inspector General of Registration, WP(MD) No. 4125 of 2019, dated 22-04-2019
[8] Sabari v. Inspector of Police  WP. (MD). Nos. 19651 of 2018.
[9] Id.
[10] Vij, R.K. “India should consider lowering the age of consent”. Hindustan Times (2019). Last accessed date November 18, 2019. https://www.hindustantimes.com/analysis/india-should-consider-lowering-the-age-of-consent/story-BlWpuGuaQu93q4GdSsJ6KJ.html.

 Photo credit: GirlTalkHQ