-Akashdeep S R
In India, rape, as defined in Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, is a punishable offence. The requirement is that the victim should not have consented to the alleged sexual act. If the victim is under 18, she would be considered a minor, and her consent would not be valid (Section 63 (d)(vi). Further, the Protection of Children from Sexual Offences (POCSO) Act passed by the Indian Parliament in 2012 criminalised three distinct categories of offences: sexual assault, sexual harassment, and use of child pornography including penetrative sexual offences. As a result, we have a robust framework to address sexual offences committed against minors.
However, this framework has one critical flaw. It is evident that if an adult engages in sexual acts with a minor, they are punishable by relevant provisions of the IPC and POCSO, and they are not entitled to take the defence of consent as consent given by a minor is not valid consent. The same laws apply when two minors have sexual relations without consent. This would imply that the relationship between two minors, despite being consensual, would be criminalised, and they would be liable to rigorous punishments that apply to each one of them respectively, criminalising such a consensual relationship was not the objective of the POCSO Act, and it seems like an absurd outcome of the law. Karnataka High Court in State of Karnataka vs Basavaraj & the Madhya Pradesh High Court in Veekesh Kalawat vs State of Madhya Pradesh have expressed dissatisfaction with the current laws as recognised in the 283rd Law Commission Report prepared by the 22nd Law Commission of India and released in September of 2023.
However, the recommendations given by the Law Commission are unsatisfactory, especially at times when the courts have acknowledged that POCSO is being misused against teenagers in consensual relationships. These recommendations make minor changes to the law without addressing the underlying issue.
In this article, we will discuss the changes suggested by the Law Commission and why they are unsatisfactory. Additionally, we will compare how other jurisdictions address the issue and conclude by proposing changes to the existing Indian framework.
The Law Commission gave its recommendations in its 283rd Report. The recommendations are as follows:
An amendment to Sections 4 & 8 of the POCSO Act proposes that when the victim is above the age of 16, the court can, at its discretion, impose a lesser punishment on the accused, if it is determined that the relationship is “consensual”. The current punishment is ten years; if the amendment were to be made, the court can, at its discretion, impose a punishment of less than ten years. This proposal is problematic because the Law Commission is avoiding a recommendation that could decriminalize the relationship between two minors. Despite this discretion, the court would still be obligated to give punishment to a minor for being in a consensual relationship. Furthermore, this discretion does not establish a concrete rule, and the punishment awarded will depend on the court and the bench’s composition, making it arbitrary. The Commission missed an important opportunity to re-evaluate and revise the POCSO framework to accommodate teenage consensual relationships. We need to consider the factor of teenage relationships as being a stage of human development. The need for change is further underscored by the fact that the age of 18 is not a scientifically determined threshold but rather an arbitrary number. Emotional maturity necessary for engaging in sexual relations can be achieved both before or after this age. In fact, in 1860, the age of consent under IPC was 10 years, which was eventually raised to 16 years. It was only in 2012, when the POCSO Act came into force, that the age of consent was defined as 18. It is also to be noted that this is not an international standard followed by other nations either, as the age of consent across the world varies from 12 to 21 years.
Close-in-range approach
Recognising the issues associated with the traditional approach to consent, many jurisdictions worldwide have opted for a close-in-range approach or “Romeo-Juliet laws”. As aforementioned, the traditional approach risks criminalising consensual relationships among teenagers or adolescents, where both parties are simultaneously victims and perpetrators. To mitigate this, many jurisdictions have enacted laws that address these concerns. In a close-in-range approach, a younger partner can consent to sexual relations with an older partner, although depending on the jurisdiction, there is a minimum age limit for the younger partner and a maximum age limit for the older partner. Below are examples from various countries for clarity:
In many of the U.S. states, close-in-range exemptions have been established. Delaware has the age of majority to be 18, individuals aged 16 to 18 may consent to have sexual relations with an older partner, provided that the older partner is not older than 30 years of age. If the age of the victim is between 14 and 16, they can engage in relationships with someone up to 10 years older and if the victim is between the ages of 12 and 14 and the accused is under 19, they can also have sexual intercourse. The minimum age, however, is 12.
Germany serves as another example. Section 174 of the German Criminal Code states that any person who performs sexual acts on an individual under 18 and is in their care (which includes but is not limited to upbringing, training, biological and other familial relationships) is liable for punishment. According to Section 176, whoever performs a sexual act on a child under 14 is liable unless they both consented to the same, and the difference between their ages, emotional and developmental disparities is minimal, this is a flexible framework. Many other countries have implemented similar provisions.
The 283rd Report considers this aspect and evaluates why such a clause was excluded from the POCSO Act. This analysis was largely based on two draft submissions of the POCSO Act that included close-in-range approaches. The POCSO Act, drafted by the National Commission for Protection of Child Rights (NCPCR), proposed a similar framework, creating exceptions from punishment based on the ages of the victim and the accused. Similarly, the draft prepared by the Ministry of Women & Child Development included a clause allowing for consideration of circumstances under which consent was obtained if the victim was between the ages of 16 and 18. This was aimed specifically at protecting adolescent relationships.
However, this proposal was rejected because the age of majority under the draft POCSO was 18, leaving no scope for a person below the age to consent. A better-worded provision or a slight change in clause 2(d) of the draft act, which reduced the age of majority from 18 to 16, could have addressed the objection, especially considering that at the time, the age of consent was indeed 16, but neither was done. The NCPCR framework was overlooked.
Commission’s Analysis
The Commission considered three possible outcomes. The first, as suggested by the Justice J S Verma Committee Report of 2013, was to reduce the age of consent to 16. The Commission disagreed, stating that such a reduction would lead to “unindicted consequences”. They argued that since consent can be manufactured, lowering the age of consent might result in child sexual abuse, where consent exists but is manufactured. However, since the age of 18 is arbitrarily chosen to be the age of majority, it is possible that consent from an 18-, 19- or 20-year-old could be manufactured, depending on their emotional maturity. As aforementioned, different countries have varying ages of consent, which indicates that no single age can adequately represent the emotional maturity necessary for a sexual relationship. Therefore, selecting an arbitrary number of 18 and concluding that the consent of anyone below that age could be manufactured and thus, should not be valid is incorrect.
The second potential outcome is that of a close-in-range approach. The Commission asserts that because anyone under 18 is classified as a child, their consent is not considered valid consent. However, this is a circular argument. Legal definitions should be changed if they do not conform to reality. Moreover, the Commission suggests that such a change could facilitate the grooming of young children but this is not the correct position to take. The issue of age reduction pertains to who can consent, and it does not adequately address the issue of child grooming. If an individual does not consent to a particular act, it is still considered a crime and is punishable by law. The state cannot prohibit a right because it fails to enforce it. If the state cannot enforce a specific law, it should improve its enforcement mechanisms.
The third outcome involved an amendment to the act which would provide discretion to the Judge and has been discussed in the above part.
Conclusion
There is no substantial reason to prohibit sexual relationships between two consensual minors; however, it is essential to establish a minimum age. As the Commission notes, many girls above the age of 16 are falling in love and engaging in sexual relationships with boys [para 2.1 of the Report], and with the refusal to reduce the age of consent to 16, a middle ground could be reached. Accordingly, a hypothetical framework based on the draft POCSO Act submitted by NCPCR and the laws from other jurisdictions:
The age of consent under POCSO should remain fixed at 18. However, minors aged between 16 and 18 who enter into relationships with other individuals aged 16 to 18, should be legal. (The age bracket of 16 to 18 is used in the purview of the recognition by the committee that a significant number of girls in the age bracket would elope due to romantic relationships, possibly due to the law not recognising such a relationship to be legitimate, further, it is suggested, keeping in mind the advisory given by the Ministry of Women & Child Empowerment as discussed above) Sexual relationships between individuals aged 16-18 and those aged 18-21 should be legal, provided that such an older person does not hold a position where they could enforce undue authority over the minor (such as caretaker, teacher etc.)
The age of consent under POCSO should remain fixed at 18. However, minors aged between 16 and 18 who enter into relationships with other individuals aged 16 to 18, should be legal.
This framework would accommodate teenagers in relationships and acknowledge natural biological developments. However, it is not perfect. More time and resources must be invested in drafting a law that does not criminalise relationships among individuals. The government needs to step in and consider incorporating these changes into law, especially considering that the adolescent population of our nation is 253 million, a significant number of autonomous individuals who will be affected by the same.
The author is a 3rd year law student at the NALSAR University of Law. He is interested in the areas of Constitutional Law, Criminal Law & White Collar Investigations.
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