Age of consent for sex: Why a 160-year-old debate is still raging

India Today

3 days ago

The age of consent first saw a debate in 1860 when sexual intercourse with a girl under 10 was criminalised. It was raised to 12, 14 and then to 16 in 1940. After staying at 16 for over seven decades, it was raised to 18 in 2013. Since the first debate 165 years ago, the age of consent is in the eye of the storm over the "criminalisation of adolescent love". A fierce debate has erupted in the legislative corridors over whether to lower the age of consent.advertisementThe Indian government has taken a strong stance against amicus curiae and Senior Advocate in the Supreme Court, Indira Jaising's demand to redefine the word 'child' in Section 2(d) of the Protection of Children from Sexual Offences (Pocso) Act, 2012.As per this law, any sexual activity with a person under 18 is criminalised, regardless of consent.
The provision defines 'child' as any person below the age of 18 years, thereby putting a blanket age of consent and penalising any sexual activity, whether consensual or non-consensual, between individuals, where either one is legally a 'child'.Jaising has argued for the statutory age to be lowered to 16 years to exempt individuals aged between 16 and 18, engaging in consensual sexual activity evolving from voluntary relationships, from the stringent penalties in the Pocso Act.DEBATE ON DECRIMINALISING SEX BETWEEN CONSENTING ADOLESCENTSJaising has deemed the criminalisation of sexual activity between consenting adolescents, aged 16 to 18 years, as arbitrary, unconstitutional and against the best interests of children.The written submission by Jaising is part of a 2012 petition by advocate Nipun Saxena to safeguard the privacy and dignity of the survivors of sexual offences by preventing the unauthorised release of their identities.Demanding exemption from the Pocso Act, Section 375 of the IPC and its corresponding provision in section 63 of the BNS, which prescribes punishment for rape, Jaising invoked the "close-in-age-gap" exception which is also called the Romeo and Juliet clause.She said, "The only solution lies in declaring that sex between consenting adolescents between the age of 16, an almost universal age of sexual maturity, and 18 is not a form of 'abuse'.""Such an exception would preserve the protective intent of the statute while preventing its misuse against adolescent relationships that are not exploitative in nature," Jaising reasoned.HOW AGE OF CONSENT MOVED UP FROM 10 TO 16The age of consent for marriage progressively increased from 10 years in the Indian Penal Code (IPC) 1860 to 14 years and 16 years by amendments in 1925 and 1940, respectively.It was in 1860 that the IPC criminalised sexual intercourse with a girl under 10, even if married.advertisementThe Age of Consent Act, 1891, amended the IPC provisions, and raised the age to 12 after the death of Phulmoni Dasi, an 11-year-old girl from Bengal due to marital rape.Amid social reform movements and pressure on the British rulers from nationalists in India, the age was upwardly revised to 14 through the Criminal Law (Amendment) Act, 1925.In 1978, the age of consent for marriage was increased to 18 years for women and 21 years for men by an amendment to the Child Marriage Restraint Act.The age of consent was raised to 16 years through the IPC (Amendment) Act, 1940. It remained unchanged at 16 for around 70 years after Independence before it was changed in 2013.It was the Pocso Act, 2012, which came after the brutal Delhi gang rape that defined anyone under 18 as a child. However, IPC Section 375 still held the age of consent at 16, thus creating a mismatch.That was resolved through the Criminal Law (Amendment) Act, 2013, which harmonised IPC Section 375 with Pocso, raising the age of consent for sexual activity to 18. It came on the recommendations of the Justice Verma Committee.advertisementThe present case in the Supreme Court challenges the Criminal Law (Amendment) Act of 2013."The age of consent was static at 16 for 80 years. No rational reason has been indicated for the increase, nor is there any data to suggest that the age of consent required any increase," stated Jaising."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," she argued.She pleaded for the focus to be shifted to providing sex education rather than criminalising it.MENARCHE AND SEXUAL ACTIVITY IN TEENAGERSThe Centre took a stand against the argument and the lowering of the age of consent from 18. It highlighted how minors lack the legal and developmental capacity to give meaningful and informed consent in matters involving sexual activity.The government called the age of consent a robust and non-negotiable shield for minors.As per a study by the National Institutes of Health (NIH), arguments against lowering the age of consent are that it might result in younger children being more engaged in sexual activity, and take the chance away from children who do not wish to engage in sexual acts.advertisementIt is also said that young people are not emotionally mature enough to engage in sexual activity, regardless of cognitive competence. This is complemented by neuroscientific evidence that says that the adolescent brain undergoes significant changes throughout the teens and beyond.But in the same NIH study, the counter-arguments to these findings are studies on the median age of menarche in girls, which prove how a majority of girls aged 14 are physically mature to engage in sexual activity and that they are capable of analysing the risks and benefits as a 21-year-old.On emotional maturity, the parameter of impulsivity is shown to significantly decrease only by the ages of 22-25 and 26-30 years, so this would make consent by individuals aged up to at least 25 years invalid.Also, the strongest arguments in favour of lowering the age limit is the decriminalisation of freely given sexual consent and access to safe sexual health services without the fear of being penalised for having engaged in an illegal activity.JUDICIAL CONFUSION AND TEENAGE DILEMMACourts across India are seemingly divided on cases involving consensual relationships with minors, often balancing the survivor's welfare against the strict provisions of the Pocso Act. While some rulings have exercised extraordinary powers to acquit, others have upheld prosecutions citing the law's intent to protect children.advertisementCalling its judgment not a precedent and exercising powers granted by Article 142 of the Constitution to do 'complete justice', the Supreme Court acquitted a man aged 25 years old under Pocso from a 20-year-long jail sentence on May 23, 2025.The survivor told the Calcutta High Court that she voluntarily entered into a relationship with the accused, married him and birthed a child, "out of her own volition" and the HC reversed the Trial Court's conviction for rape and kidnapping under the Pocso Act, with a rigorous imprisonment of 20 years.After the three-member expert committee submitted its report, the apex court noted that it was not the alleged crime, but the legal proceedings that traumatised the survivor and put the family in emotional and financial distress.Alarming the significant failures of the Pocso Act, the Supreme Court said, "The facts of the case indicate failure of the concept of welfare state".Similar judgments were delivered in the Karnataka High Court in 2022 and the Madras High Court in 2021, which prioritised the survivor's welfare and avoided the rigid application of the law under "extraordinary circumstances".However, last month the Bombay High Court refused an application to quash a proceeding under the Pocso Act, the IPC and Prohibition of Child Marriage Act, 2009, involving the accused's relationship with the 17-year-old survivor.Holding that it awaits clarification by the Centre, the court refused to entertain the application, which stated that there was a consensual relationship between the survivor and the accused.The Centre strongly opposes lowering the age bar.Additional Solicitor General Aishwarya Bhati stated in the written submissions, "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 cited a 2007 Ministry of Women and Child Development report which found that 53.22% of children reported facing one or more forms of sexual abuse, out of which 50% of the abusers were persons in positions of trust or authority."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", argued the Centre.PARLIAMENT'S WILL AND APPARENT LEGAL LACUNAResponding to Jaising's arguments, the Centre asserted that the definition of a "child" as a person below 18 years was a deliberate choice arising out of its constitutional duty to protect children.Calling this stance "the legislative position embodying the collective will of Parliament", the Centre cited several legislations, such as the Indian Majority Act, 1875, the Juvenile Justice (Care and Protection of Children) Act, 2015, etc.The submissions maintained the government's adherence to the constitutional provisions which guarantee special provisions for women and children and India's commitment to the United Nations Convention on the Rights of the Child (UNCRC).This convention defines a minor as anyone under 18 years old, and regards sexual activity with such a person, regardless of consent, as rape.However, in its previous submissions, the Centre allowed for judicial discretion to be exercised on a case-to-case basis in adolescent relationship cases.This ambiguity returns to a lacuna in the law that makes the outcomes of such cases dependent upon judicial decisions and inconsistent across jurisdictions.- Ends