Age of consent for sex cannot be less than 18 years, Centre tells SC
"The statutory age of consent fixed at 18 years must be strictly and uniformly enforced. Any departure from this standard, even in the name of reform or adolescent autonomy, would amount to rolling back decades of progress in child protection law, and undermine the deterrent character of laws like
Pocso Act
, 2012, and BNS," it said.
Centre said the constitutional framework unequivocally supported the legal presumption that a person below 18 years of age was incapable of giving valid and informed consent to sexual activity.
"Loosening age-based protections could open avenues for abuse (rape) under the guise of consensual (sexual) activity," it said.
In a comprehensive written submission settled by additional solicitor general Aishwarya Bhati, the Centre detailed how the age of consent increased from 10 years in Indian Penal Code, 1860; to 12 years under the Age of Consent Act, 1891; 14 years in an amendment to IPC in 1925 and Sharda Act (Child Marriage Restraint law) of 1929; to 16 years in a 1940 amendment to IPC and 18 years in 1978 through amendment to Child Marriage Restraint Act which has remained in force till date.
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"The age of consent under Indian law, fixed at 18 years, represents a carefully considered legislative choice aimed at creating a non-negotiable protective framework for children. This flows from the inherent protection provided to children envisaged under the Constitution of India," govt said.
It added that the judiciary, on a case-by-case basis, could exercise discretion, including the close-in-age exception for those nearing 18 years and engaged in adolescence romance.
"The legislative framework governing child sexual offences, particularly under Pocso Act, 2012, is premised not only on the vulnerability of the child due to age, but also on the recognition that a majority of such offences are committed by persons within the child's immediate environment of trust, including family members, neighbours, caregivers and teachers.
Such perpetrators have a strong influence on the authority and agency of the minors," Centre said.
It said data collated by National Crime Records Bureau (NCRB) and NGOs like Save the Children and HAQ Centre for Child Rights, indicated that over 50% of sexual offences against children were perpetrated by persons known to the child or those who were trusted by the minors.
Lowering the age of consent from 18 years, under the guise of adolescent romance, would be legally unsound and provide a defence to the abusers, who exploit the minor's emotional dependence or silence, govt said.
"A child's inability to report or resist is exacerbated when the perpetrator is a parent or close family member. In such cases, presenting 'consent' as a defence only victimises the child, shifts the blame onto them, and undermines the very object of Pocso Act to protect children from exploitation regardless of whether they were 'willing," it said.
Govt said the existing age of consent (18 years) must not be tinkered with by the court as it was specified in several legislations to "protect the bodily integrity of children and uphold the constitutional and statutory safeguards accorded to them".
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