The Union government has asked the Supreme Court not to reduce the age of consent under the Protection of Children from Sexual Offences (POCSO) Act, 2012 from 18 to 16 on the grounds that it would create room for abuse and exploitation of adolescent girls, especially by older persons.
The Centre made these arguments in Nipun Saxena & Another vs Union of India, an ongoing case before the Apex Court, dealing with reforms to safeguard the safety and dignity of women.
The case arose from conflicting High Court decisions on whether consensual sexual relationships between adolescents, particularly where both parties were between 16 and 18, must attract the full rigour of POCSO.
The issue was flagged following a slew of cases where the complainant herself admitted to consensual involvement, yet the boy came to be charged under POCSO due to the statutory bar on consent below 18.
Appearing for the Union of India, Additional Solicitor General Aishwarya Bhati submitted that the current framework of the POCSO Act was based on the understanding that persons under 18 were vulnerable and required special protection.
She cited data from the National Crime Records Bureau (NCRB), saying that a large number of cases under the POCSO Act were related to assault and abuse by adults.
In order to drive home the point that judicial interference in the age of consent was unwarranted, Bhati said the law already had built-in safeguards such as provisions allowing courts to take a lenient view in sentencing where it was found that the relationship was consensual and not exploitative.
Retaining 18 as the threshold was necessary to ensure robust protection, she said in her written submissions.
Senior Advocate and Amicus Curiae in the case, Indira Jaising, suggested that the age of consent should be lowered from 18 to 16 to prevent misuse of POCSO provisions against young persons.
She argued that in the present form, the law disproportionately penalised adolescents in consensual sexual relationships.
In her written submissions, Jaising said before POCSO came into force in 2012, the Indian Penal Code (IPC) defined the age of consent as 16. POCSO raised this to 18 for all purposes, creating a complete bar on recognising consent under that age.
The decision was not based on any scientific rationale or empirical study. Instead, it was driven by an overly paternalistic desire to protect adolescent girls, she pointed out.
Noting that adolescents aged between 16 and 18 were entitled to the right to privacy, dignity and decisional autonomy in matters of sexual relationships, Jaising said reducing the age of sexual consent from 16 to 18 would harmonise the POCSO Act with ‘ground realities’ and evolving adolescent behaviour.
Referring to the report of the Committee on Reforms of Criminal Laws and the Justice Verma Committee Report, the Senior Advocate said several expert bodies had already recommended reducing the age of consent to 16.
Lowering the age of consent would not decriminalise exploitative conduct, since other provisions of law including those relating to rape and aggravated assault would continue to apply, she added.
Jaising also proposed that a presumption of consent could be introduced for adolescents aged 16 and above, subject to rebuttal based on factors such as power imbalance, coercion or deceit.
In order to strike a balance between protecting children from exploitation and not penalising consensual relationships, Jaising proposed the introduction of a presumption of consent for adolescents aged 16 and above, subject to rebuttal based on factors such as power imbalance, coercion or deceit.