A new debate around India’s age of consent has been reinvigorated. Recent child rights activists recently legal developments and calls for reform ignited this log daunting bright renewed discussion. At the centre of this debate lies the Protection of Children from Sexual Offences Act (Pocso) of 2012. This law sets a clear and firm age of consent at 18 years. This law, first and foremost, aims to protect children from sexual abuse in all its forms. Advocates say if passed it could inadvertently criminalize consensual, age-appropriate relationships between teens aged 16 and 18.
In response to the consultation, the Law Commission recommended that the age of consent should be retained. They further recommended the adoption of “guided judicial discretion” for sexual encounters between persons aged 16 and 18 years. About this extremely democratic suggestion, a renewed fight has emerged over whether and how such discretion should exist at all under our currently established rule of law.
Yet activists like Indira Jaising have long argued for a strong “close-in-age exception.” Removing this ambiguity would allow for consensual sexual relationships between individuals aged 16-18 without being subject to criminal actions under Pocso. Jaising emphasizes that “the purpose of age-based laws is to prevent abuse, not to criminalise consensual, age-appropriate intimacy.” Lawyer and child rights activist Bhuwan Ribhu says these blanket exceptions could be dangerously misused. He cautions that any exceptions like these might open loopholes for misuse in the context of kidnapping, trafficking, and child marriage.
Sharmila Raje, co-founder of the Foundation for Child Protection-Muskaan, supports the call for reform in the Pocso Act. She argues, “As a society, we’re divided along caste, class and religious lines, which makes the [age of consent] law even more susceptible to misuse.” Activists have been fighting against these complexities and for a broader understanding of these nuances. Further, they are advocating for more individualized legal responses showing a better understanding of young people’s unique circumstances.
A notable instance that has drawn attention to these issues occurred earlier this year when the Madras High Court overturned the acquittal of a 23-year-old accused in a case involving a 17-year-old victim. These cases show just how insurmountable the barriers laid out in existing laws can be. India’s famously sluggish judicial system is already swamped, with millions of cumulative pending cases waiting on their day in the solar system.
Shockingly, even with this clear and urgent need for reform, schools throughout India continue to omit age-appropriate sex education from their lesson plans. Reports indicate that not only are millions of Indian teenagers sexually active, many marry young. This underscores the intense urgency of arming them with information about healthy relationships and consent. The lack of proper education and training on these issues leads to misinterpretation and misapplication of laws such as Pocso.
India’s age of sexual consent is 18, which is higher than the legal consent age across most of Europe. This is much lower than, for example, the minimum voting age of 16 in the United Kingdom and Canada. This discrepancy begs so many important questions. Is India’s age of consent really the right age of consent, and does it represent our new societal outlook, values, and ethos?
Pocso’s introduction in 2012 was a watershed moment in India’s legal landscape around protection of children. The amendment also established there was an age limit of 18 years for consensual sexual activity. Its stated intentions were to shield children from being exploited. Societal attitudes are always changing and evolving. As many child rights advocates will tell you, sometimes laws must change in order to remain effective and relevant. Enakshi Ganguly asserts, “Laws need to keep pace with changes in society if they are to remain effective and relevant.”
This problem is further complicated by the different social dynamics in states throughout India. Activists and advocates argue that when applied, these new laws could disproportionately target and criminalize marginalized communities. Further, they make a case for these reforms to be enacted beyond legal imperative for the sake of social equity.
Discussions about possible amendments to the Pocso and other legislation are still ongoing. Advocates on all sides of this issue within the child rights community are calling for a measured approach that protects children without infringing on their autonomy. The growing consensus among advocates remains clear: reform is necessary to ensure that laws serve their intended purpose without infringing upon young individuals’ rights.
