Amicus counters government stand, says it violates right to autonomy
Supreme Court
that it criminalised "consensual sexual activity between children in the age group of 16-18 years, and violated their right to autonomy".
Presenting a counter to Centre's stand in the case, Jaising said the age of consent was static at 16 years for 80 years and "neither any rational reason was given justifying the increase to 18 years nor was there any data to suggest that the age of consent required any increase".
"Until enactment of
Pocso Act
, there was no law dealing with sexual offences against children. The newly enacted Bhartiya Nyaya Sanhita (BNS), 2023, in Section 63, has kept a legislative scheme similar to the one in Criminal Law Amendment Act, 2013, that amended IPC to increase the age of consent to 18 years," she said.
Jaising said increase in age of consent violated right of autonomy of children in 16-18 age group, who could give mature consent to sexual activity given the fact that they had attained puberty and, consequentially, sexual awareness. However, she put in an important caveat. "This brief does not suggest that anyone above the age of 18 who has sex with another below the age of 18 be decriminalised," she said.
"Scientific research indicates that adolescents are attaining puberty sooner than they did several years ago and puberty as we know, is the age of awakening of sexual awareness.
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It is the age during which there is a natural attraction between the sexes and development of sexual relationships of choice," Jaising said, adding, "Hence, to criminalise such an activity rather than addressing the issue of sex education, is arbitrary, unconstitutional and against the best interests of children as defined in law.
"
Jaising requested SC to "declare that any consensual sexual activity between children of the ages of 16-18 constitutes an exception to penal provisions of the statute as being 'close in age', non-abusive and non-exploitative".
Increasing the age of consent has led to branding hundreds of children in the 16-18 age group as criminals, she said, adding, "Data also indicates that most complaints to police are filed by parents of the girl, often against her own wishes and for extraneous reasons such as inter-religious relationships or inter-caste relationships.
"Consensual sexual relations between adolescents in the 16-18 age bracket need not necessarily result in marriage, but on the contrary, criminalising such sexual behaviour will result in children eloping and getting married to avoid being prosecuted by Pocso." She suggested to the court that the law as it stands requires to be read down to include a 'close in age' exception when the sexual activity is consensual.
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