Centre opposes lowering age of consent, cites risk of trafficking, abuse

The Hindu

2 days ago

The Union government has objected before the Supreme Court to any move to reduce the age of consent under child protection laws from 18 to 16 years, warning that such a change would open the floodgates to trafficking and other forms of child abuse under the garb of assent.
'Introducing a legislative close-in-age exception or reducing the age of consent would irrevocably dilute the statutory presumption of vulnerability that lies at the heart of child protection law,' the Centre, represented Additional Solicitor General Aishwarya Bhati, clarified in written submissions placed on record.
To buttress its argument, the Centre cited a 2007 Ministry of Women and Child Development study which found that 53.22% of children reported facing one or more forms of sexual abuse. It noted that in 50% of these cases, the abusers were persons in positions of trust or authority, including parents, relatives, neighbours, and school staff.
'The report concluded that children are particularly vulnerable when the offender is a known figure, as the abuse is concealed, normalised, or silenced through emotional manipulation or fear,' the Centre explained.
The Centre's position is in contrast to that of senior advocate and amicus curiae Indira Jaising, who has argued before the court that consensual sexual activity between adolescents aged 16 to 18 should not be classified as 'abuse' or criminalised under the Protection of Children from Sexual Offences (POCSO) Act.
Ms. Jaising urged the court to read a 'close-in-age exception' into the law, which would apply to consensual sexual activity where both individuals are adolescents aged between 16 and 18. She submitted that the term 'child' under Section 2(d) of the POCSO Act should not include adolescents in this age group engaged in consensual sexual relationships. Such an exception, she argued, would align with the protective intent of POCSO while avoiding its misuse in cases involving non-exploitative adolescent relationships.
However, the Centre maintained that defining 'child' as a person below 18 years was a 'deliberate choice, grounded in the recognition that minors lack the legal and developmental capacity to give meaningful and informed consent in matters involving sexual activity.'
'The decision to criminalise sexual acts with children under 18 years reflects a clear understanding of the vulnerability of minors, the common occurrence of coercion and manipulation in such situations, and the challenges in proving the absence of consent when minors are involved… This legislative position embodies the collective will of Parliament, acting in furtherance of its constitutional duty to protect children,' the Centre submitted.
'The legislative intent is further reinforced by the age threshold adopted in other enactments, including the Indian Majority Act, 1875, the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Prohibition of Child Marriage Act, 2006… The legal position is again affirmed under Section 375 of the IPC and is retained under Section 63 of the Bharatiya Nyaya Sanhita, where sexual intercourse with a girl below 18 years of age constitutes rape per se, regardless of her purported willingness,' the Union government submitted.
The government said the legislative framework on the age of consent under Indian law was rooted in a clear and unambiguous intent to provide a 'robust, non-negotiable shield' to minors against sexual exploitation.
This intent flows from constitutional mandates under Articles 15(3) (special provisions for women and children), 21 (right to life) and 39(e)-(f) (protection of children from abuse) and India's international obligations under the UN Convention on the Rights of the Child.