The Age Of Consent: Protective Or Punitive?

The question of whether to reduce the age of consent—the age at which the law recognises an individual's ability to consent to sexual activity—is once again before the Supreme Court. In the case of Nipun Saxena vs Union of India, amicus curiae and senior advocate Indira Jaising urged the court in July to read down the statutory age of consent from 18 to 16 years. At the hearing on November 12, the Union of India argued that doing so would be “legally wrong and dangerous”, since it could weaken child protection laws.

Both sides have one thing in common—they advocate for what they believe to be in the best interest of children. But whether a strongly protective legal regime, or one that reflects the current realities of adolescent sexual behaviour is better is the source of much debate, predominantly because it boils down to questions of morality and how we perceive the capacity of children to make choices. It’s a subject on which people tend to have deeply personal, strongly held and widely differing opinions.

Those in favour of maintaining 18 years as the age of consent argue that it protects children from sexual exploitation, trafficking and child marriage. They believe that strong child protection laws are required to prevent young girls, in particular, from being taken advantage of. It is also held that while a child is legally a child, the law is meant to protect them from choices that they are not mature enough to make. What these arguments overlook are the unintended consequences of this law on young people who engage in consensual sexual activity.

Visit any childcare institution for young offenders and you will find dozens of young boys accused under the Protection of Children from Sexual Offence (POCSO) Act for the crime of being in a romantic relationship with a girl around their age. Visit any such institution that

houses victims of crimes and you will find young girls, sometimes with their babies, who are placed in the care of their state because their partners are in custody and they cannot safely return home, or refuse to do so. These children, boys and girls, are the victims of a law that ignores ground realities—that young people do engage in sex, that the families of girls file FIRs in these “romantic cases” and that the justice system then subsumes the next chapter of both their lives.

This abuse of the POCSO Act as a tool of punishing romantic relationships is well recorded. A 2022 study by Enfold Proactive Health Trust found that 24.3% of the total cases disposed of between 2016-2020 in Assam, Maharashtra and West Bengal were romantic cases. In 87.9% of these cases, the girl “victim” admitted to her romantic relationship with the accused. Similarly, a 2018 study by the Centre for the Child and the Law at National Law School of India University revealed that romantic cases constituted over 20% of cases in Andhra Pradesh, Delhi, Maharashtra and parts of Karnataka.

The consequences clearly stretch beyond the incarceration and criminalisation of the boy involved, who, incidentally, could also be considered a victim under the gender neutral POCSO Act, but is not, given societal perceptions of gender and consent. They impact not only the right of an adolescent girl to autonomy and privacy—dragging her through the indignities of a trial over her consensual behaviour—but also her ability to safely access health services. The Medical Termination of Pregnancy Act requires parental consent for the termination of pregnancy of a child and the POCSO Act makes it mandatory for anyone who is aware of child sexual abuse to report it, including doctors. It is no wonder that one hears about girls seeking unsafe and illegal reproductive health services.

Beyond this, the law creates an undue burden on the already overstretched justice system. This is compounded by the fact that the POCSO Act does not allow for any exceptions in situations, where the girl states that she was in a relationship with the accused willingly. Faced with such realities, courts have, in the past, creatively interpreted the law to release boys and young men accused of rape due to romantic relationships. But this is not what the law envisages and in the majority of cases, boys spend many years of their lives in custody, either while under trial or after conviction, sometimes while their partners and babies await their release.

In this context, it is no wonder that the Apex Court has expressed concern about the abuse of the POCSO Act to penalise adolescent relationships. Whether the Court chooses to read down the statutory age of consent from 18 to 16 years or explore a close-in-age exception to the current law, it is certain that steps are required in order for the law to reflect societal realities and to prevent the POCSO Act from being used to punish the very children it seeks to protect.

Deeksha Gujral is iProbono India's Program Director, who leads their programs, including litigation, psychosocial support, advocacy and capacity enhancement.