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India: Calls to lower age of consent to 16 over teen romance

Nidhi Suresh in New Delhi
December 29, 2022

In India, any sexual contact with person under 18 is classified as rape. But a state court is now calling for a change in policy, pointing to teen couples who are also impacted by it.

A young couple standing on a terrace in India
Activists warn that laws aimed to protect children are often misused by parentsImage: Yogesh S. More/IMAGO

Top members of India's judiciary are calling on the government to reconsider changing the laws on the age of consent and lower it from 18 years old to 16.

In November, the High Court in the Indian state of Karnataka urged the Law Commission of India to look into the issue. The Commission is a government-appointed body of experts advising the government on legal reform.

Then, on December 10, Chief Justice of India D Y Chandrachud appealed to Parliament to address the "growing concern" around the age of consent for sexual relationships.

"In my time as a judge, I have observed that this category of case poses difficult questions for judges across the spectrum," he said.

Despite multiple appeals from the judiciary, India's government has made it clear that it will not be considering a legal change.

Last week, Women and Child Development Minister of Smriti Irani said a discussion on revisiting the matter "does not rise."

What prompted the appeal from India's judiciary?

In 2017, the parents of a 17-year-old girl in Karnataka filed a rape complaint after their daughter eloped with a boy. When the girl turned 18, she married the accused and the couple now have two children.

The lower court had acquitted her husband of rape charge, but, in November 2022, the Karnataka High Court heard an appeal that challenged this acquittal.

The two-judge bench observed that courts had come across several cases "relating to minor girls above the age of 16 years having fallen in love and eloped and in the meantime, having had sexual intercourse with the boy."

Ten years after Delhi gang rape, has anything changed?

The judges noted that the "consent even by a girl of 16 years and above would have to be considered."

Moreover, the court pointed out that a growing number of cases were being filed under the Protection of Children from Sexual Offences (POCSO) Act — which does not recognize consensual sex between adolescents under the age of 18.

What is the POCSO Act?

The shocking 2012 Nirbhaya gangrape in Delhi prompted extensive changes to India's rape laws.

Even though India ratified the UN Convention on the Rights of the Child in 1992, offenses against children were not redressed through any legislation until 2012, when the POCSO Act came into law. The aim of the act is to protect children from all kinds of sexual abuse.

The POCSO Act lays out stringent punishments ranging from 20 years of imprisonment to the death penalty in cases of aggravated penetrative sexual assault.

The law considers a girl of 16 years to be a "child" and any sexual activity with and between persons below the age of 18 is classified as rape.

In the appeal by the Karnataka High Court, the judges also noted that children above ninth grade need to be made aware of what acts are criminalized under the POCSO Act and the Indian Penal Code. They called for better sex education in schools.

A push to revise the definition of 'child'

In 2021, the Madras High Court in India dismissed a similar case of rape filed under the POCSO Act and said the definition of "child" under the act must be reduced to 16 from 18.

"Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act," the court recommended.

The court added that the age difference between the two people should not be more than five years. This is to ensure that a girl of impressionable age is not taken advantage of by "a person who is much older."

In 2019, the UN Committee on the Rights of Child urged states to remove status offenses that criminalize adolescents who engage in consensual sexual acts.

Many POCSO complaints are 'romantic cases'

A 2022 study of POCSO claims in three Indian states found that 23.4% were "romantic cases," in which the victim was in a consensual relationship with the accused. The survey looked into a total of 7,064 cases in West Bengal, Assam and Maharashtra, and was conducted by an NGO called Enfold Proactive Health Trust, along with UNICEF and UNFPA.

The policy brief also noted that, in these "romantic cases," 70.8% of the informants were the parents of the girl.

Swagata Raha, director of research at the trust, said the focus of the brief was to emphasize the harmful impact of criminalization of consensual sex between young people.

"The lives of the two adolescents are entirely disrupted. Boys are sent to observation homes or jail and will forever live with the tag of being a criminal," she said.

Promoting gender equality in India

In many cases, Raha said, the girls are also institutionalized in shelter homes, as they do not wish to go home to parents.

"Moreover, the dignity of the two adolescents is hugely undermined, as they have to live with the stigma and constant reminder from society of having done an act of crime," she said.

POCSO weighs down India's judiciary

In 61% of these "romantic cases," the courts agreed that the relationships between the girl and accused were consensual.

According to the National Crime Records Bureau's Crime in India 2021 report, 92.6% of cases under the POCSO Act were still pending disposal.

India, with nearly 1.4 billion inhabitants, is home to one of the largest adolescent populations in the world. According to the Ministry of Health and Family Welfare, there are 253 million people between the ages of 10 to 19.

Thus, when "romantic cases" form such a significant caseload under POCSO, it heavily weighs on the criminal justice system.

Raha said the high acquittal rate indicated that there's already a recognition within the system that the law is not in sync with social realities.

The activist said "the law needs to acknowledge that young people have sex and criminalization of this sort is not the answer," even if the age of consent is to remain 18.

Edited by: Darko Janjevic