Bring down age of consent from 18 to 16 years, Supreme Court told
Ms. Jaising, who is assisting the top court in "Nipun Saxena v. Union of India" case, has filled her written submissions challenging the blanket criminalisation of sexual activity involving adolescents aged 16 to 18 under the Protection of Children from Sexual Offences Act (POCSO), 2012 and Section 375 of IPC.
She has argued the current law criminalises consensual romantic relationships among adolescents and violates their constitutional rights.
Ms. Jaising said the legal framework wrongly equates consensual relationships between adolescents with abuse, ignoring their autonomy, maturity, and capacity to consent.
'There is no rational reason or empirical data to justify the increase in the age of consent from 16 to 18 years,' Ms. Jaising submitted, noting that the age had remained at 16 for over 70 years until it was raised by the Criminal Law (Amendment) Act, 2013.
She pointed out the increase came without debate and went against the Justice Verma Committee's recommendation to retain 16 as the age of consent.
The amicus curiae submitted adolescents today attain puberty earlier and are capable of forming romantic and sexual relationships of their choice.
Scientific and social data, including findings from the National Family Health Survey, indicate sexual activity among teenagers is not uncommon, she said.
Ms. Jaising cited a 180% rise in prosecutions under POCSO involving minors aged 16–18 between 2017 and 2021.
'Most complaints are filed by parents, often against the girl's will, in cases involving inter-caste or inter-faith relationships,' she said, cautioning criminalising consensual sex 'forces young couples into hiding, marriage or legal trouble, instead of encouraging open dialogue and education".
To address this, she urged the court to read into the law a 'close-in-age' exception, which would exempt consensual sexual acts between adolescents aged 16 to 18 from prosecution under POCSO and IPC.
'Criminalising sex between teenagers is arbitrary, unconstitutional, and against the best interests of children,' she said.
The senior lawyer referred to international norms and Indian jurisprudence to argue that legal capacity is not strictly age-bound.
Quoting the U.K.'s Gillick ruling and India's own Puttaswamy privacy judgement, she said 'autonomy in decision-making is central to the right to privacy' and must extend to adolescents capable of informed sexual choices.
The submission also pointed to trends in various high courts, including Bombay, Madras, and Meghalaya, where judges have expressed disapproval over the automatic prosecution of adolescent boys under POCSO.
These courts have stressed not all sexual acts involving minors are coercive, and the law should distinguish between abuse and consensual relationships.
Ms. Jaising concluded urging the top court to declare consensual sex between adolescents aged between 16 and 18 was not a form of abuse and must be excluded from the purview of POCSO and rape laws.
She called for a review of the mandatory reporting obligations under Section 19 of POCSO, which deter adolescents from seeking safe medical care.
'Sexual autonomy is part of human dignity,' she said, "and denying adolescents the ability to make informed choices about their own bodies was a violation of Articles 14, 15, 19 and 21 of the Constitution."
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