~By Vasundhara Mehta
Introduction
Recently, during my time at the chambers of the Hon’ble Mr Justice S. Ravindra Bhat, Judge, Supreme Court of India, I encountered the quagmire posed by consensual adolescent relationships in India. Almost every day at the Apex Court, I would hear the advocates state that the ‘victim’, a minor girl has already married the ‘accused’ during the pendency of the criminal proceedings. In several other cases, the prosecution would acknowledge, and the defence counsel would reiterate, the existence of a consensual relationship between the minors- one of whom was now being criminally prosecuted. As a little bit of a precursor, it is imperative to place this conundrum in the context of India’s legislation for shielding children from crimes of sexual nature- The Prevention of Children from Sexual Offences Act 2012 (‘POCSO’). This Act imposes a blanket prohibition on any or all sexual acts with or against a minor. A child, under POCSO, has been defined as a person under the age of eighteen years. While the Legislature has denied sexual autonomy to adolescents between sixteen and eighteen years of age, the courts often find themselves in a dilemma.
Prima facie, a simple solution to this challenge might be lowering the age of consent from eighteen to perhaps sixteen years. Steering clear from the grave risk of giving ‘progressive or ‘regressive’ connotations to any law, I believe it is crucial to place this proposed amendment in the social background of Indian society. In this essay, I look at firstly, how the aforesaid issue has unearthed some pressing concerns, secondly, how these concerns have been increasingly interpreted by courts across the country, and lastly, whether lowering the age of consent under POCSO is the ideal way forward.
A. Identifying Challenges under POCSO’s Current Scheme vis à vis Adolescent Relationships
I had the opportunity to be a Rapporteur at the National Annual Stakeholders’ Consultation on Child Protection 2022, held by the Juvenile Justice Committee of the Supreme Court and the UNICEF. Herein, contemporary realities were revisited to analyse the efficaciousness of POCSO, ten years after its enactment. Several pertinent reports were tabled and almost each of these, together with insights from ground-level workers agreed on the urgent need to tide over inordinate delays in disposing of POCSO cases. To achieve this, it is crucial to eliminate factors which are straining the current system. Pertinently, data revealed that 24.3% of cases across three Indian states were ‘romantic’ in nature. There is a huge possibility of such cases blockading the focus on speedy disposal of those cases wherein a heinous crime has indeed been committed against a child.
Probing further, it was discovered that in more than 80% of such cases, the informants were disgruntled family members who disapproved of the minor girl’s relationship with the accused. In the Indian context, such disapproval could be due to an interplay of caste and religion based hierarchical systems. Studies have also revealed that girls who elope with their boyfriends have no access to medical healthcare, which then leads to marriage, with or without an unplanned pregnancy at a young age.
Note that over 99% of the victims under POCSO are female. This brings to light a unique problem- unlike other rape laws in India, POCSO is gender-neutral. Yet, where two minors engage in consensual sexual activity, the accused is in almost all cases the male. A male minor, who also ought to have been ‘protected’ under the contours of law is suddenly subjected to its rigours and finds himself being tried for an offence that is punishable with ten years imprisonment. This relates to the gendered manner in which law plays out, or to a sexist notion which presumes girls of being incapable of advancing sexual consent, even when the act in question includes another individual of the same age.
When the law criminalizes consensual relationships, the question that then arises is, can courts choose to ignore the blanket ban imposed by POCSO on such relationships? Back in 2012, the Parliament could not have envisaged the challenges that the implementation of the Act would pose. As Lord Denning has stated, it is unreasonable to expect the legislature to draft laws with mathematical precision. This is why the judiciary has been armed with the mammoth task of interpreting the law in a manner such that the lawmakers’ intention can be given effect. The objective of POCSO was to protect young children from being sexually assaulted. To state that the Parliament intended to criminalise adolescent relationships would perhaps be an ill-suited interpretation.
B. Myriad Judicial Pronouncements across India
Teenagers who tend to give in to the natural curiosity of their bodies at an impressionable age are very often unaware of the ‘crime’ that they are committing. Though ignorance of law is no excuse, yet one of the key elements of crime is mens rea. In cases where neither person is in a position to cultivate a guilty mind, or subject the other to duress, coercion or extortion, the question of a ‘crime against the society’ does not arise.
Notably, courts across the country have adopted interesting stances, taking individual facts and circumstances of each case into consideration. There have also been cases wherein the courts have negated the consent advanced by an adolescent, adopting a strict interpretation of POCSO. This has created a ‘grey area’. In the case of State v. Shiv Nand Rai, the court held that for the age group between sixteen and eighteen years, POCSO has to be interpreted in a manner which distinguishes an act which is criminal by reason of subjecting a child to coercion, exploitation or inducement from an act which is committed without any malice. Shambhu Thilak v. State of Kerala and Ors., saw the quashing of the case because the 17-year-old girl admitted to being in a relationship with the 20-year-old boy and married him upon attaining majority. In Sunil Mahadev Patil v. State of Maharashtra, the court yet again acknowledged that adolescence imposes a demanding curiosity about one’s body and teenagers, by virtue of their impressionable age tend to engage in consensual relationships.
Some verdicts have cited romeo-juliet clauses or close-in-age exemption clauses as the solution. In 2019, a welcome acknowledgement came from the Madras High Court, which ruled that voluntary sexual relationships amongst adolescents or between adolescents and individuals who are slightly older than teen years cannot be seen as alien or unnatural. It should rather be seen as “a result of natural biological attraction”.
The courts have exercised discretion in several cases, and chosen to adhere to the letter of the law in other. Will these discrepancies be aligned, and will lowering the age of consent to sixteen years harmonise the law with the prevailing social conditions? I discuss the same in the following section.
C. Lowering the Age of Consent– The Much Sought Panacea?
A perusal of Law Commission Reports in India reveals that discussions on the age of consent have invariably been intertwined with those surrounding the age of consent for marriage. Without analysing personal laws surrounding marriage in India, it is crucial to briefly inspect their interplay with POCSO.
Even though the Prevention of Child Marriage Act (‘PCMA’) sets an age limit of eighteen years for women and 21 years for men to get married, this civil law does not render any marriage in violation of these conditions to be void. Thus, in the Indian context, it is not uncommon for a girl to have married by the time she is fifteen to presumably, an adult. Child marriages constitute a stark reality, with 44% of districts reporting a high percentage of girls who marry before the age of eighteen. To top it up, marital rape is not expressly criminalized under the Indian Penal Code (‘IPC’). This had created a scenario whereby the law presumed the consent of a minor ‘wife’ for all sexual acts while at the same time deeming an unmarried minor incapable of sexual agency.
However, in 2017, with the ruling of the Apex Court in Independent Thought v. Union of India, this preposterous anomaly was addressed to create uniformity between IPC and POCSO. Now, sexual intercourse by a husband with his minor wife constitutes rape. Thus, the age of consent has strictly been set to eighteen years through this ruling. Consequently, under the present system, in the backdrop of widespread child marriages, the husband can be charged with rape, despite being ‘legally’ married to the minor wife. Will, then, lowering the age of consent solve the dichotomy in law; or will it create a novel problem wherein already rampant child marriages are sanctified? If the age of consent is reduced to sixteen years in a society where child marriages are permissible, the change brought by Independent Thought will have to be read down. If this is done, minor girls will be at an increased risk of being subjected to sexual exploitation, given that marital rape is not a crime in India as yet.
Adopting a strait jacket formula and permitting sixteen years to be the age of consent may open pandora’s box, making sexual violence at hands of family members, teenage pregnancies, human trafficking and forced prostitution more commonplace. I argue particularly from the standpoint of females because as mentioned above, in POCSO cases, 99% of the victim are females.
Ideally, child marriages should be declared void ab initio but given the State’s reluctance to interfere with the personal laws of various communities, religious sects and tribal groups, this seems far-fetched. In such a conundrum, India might not benefit from a blanket reduction in the age of consent.
D. The way forward- Need for a balancing act
The best way forward, in my view, is for the Parliament to introduce an amendment to POCSO, through which a special provision is enacted for adolescents between sixteen and eighteen years of age. The amendment should vest special discretionary powers upon judges, to scrutinise each case based on its peculiar facts and circumstances. Admittedly, judges across the nation, as evidenced above, are exercising such discretion. However, the process shall be vastly streamlined by way of a legal provision. It will also end the judges’ dilemma of interpreting the law in a manner such that an express provision of the law is not ignored.
Furthermore, this discretionary power should only be available in cases where both or one of the parties is between the aforesaid age bracket. Additionally, this provision should specify that it is to be attracted only in cases where the victim and the accused do not have an age gap of more than three years and the victim has unequivocally admitted to being in a romantic relationship with the accused. In this way, the proposed legislative provision should mirror the essence of ‘romeo-juliet’ clauses. More importantly, the modified law must accord special relevance to the testimony of the girl, especially in cases where her family members are the informants. As an additional caveat, no guardian, family member or care provider should be allowed to benefit from this provision and the consent of the minor, despite being over sixteen years of age, should be held void.
Conclusion
There is an urgent need for decriminalizing non-exploitative and consensual sexual relations. In societies where sex is a stigma and sexual violence is also a stigma, education, awareness dissemination and widespread reproductive health programmes are the way forward. A culture of denial on part of the Legislature will in turn foster a culture of shame, secrecy and stigma. In the long run, PCMA and its provisions need to be revisited. Speedy disposal of ‘romantic cases’ where both of the above-mentioned criteria are satisfied will ease the strain on the judiciary and not take away from the resources and time of those child survivors whose perpetrators should be punished.
The author is an incoming LLM, Public Law Candidate at University College London.