Age of consent has come to the center of discussion in legal circles. It’s one of those legal questions for which there is just no right or wrong answers. Both sides which either want the age of consent for sexual relations be reduced from 18 to 16 years or want it to remain the same, in their respective viewpoints, they put forth a problem which neither gets solved by reducing the age or keeping it as it is.
In 2017, in Independent Thought v. Union of India, Supreme court of India raised the age limit for marital rape to include females upto the age of 18 years from the earlier age of 15 years. BNS retains the 18 year rule as per Supreme Court’s verdict. By this Judgment, wives of child marriages upto the age of 18 years were given protection much like any other non-married female below the age of 18. Eight years ago, we had hailed a Judgment that gave a voice to silent cries of 15 to 18 aged married women, and now we are discussing reducing the age of consent for all from 18 to 16.
POCSO is a lethal piece of law. The high burden cast on the accused persons in Sections 29 and 30 of the Act practically makes this law a go to option for turning someone’s life upside down. Although the law was meant to safeguard children from sexual offences, from bad touches, gestures, and overall sexual exploitation, it is invoked many times in case of runaway brides of below 18 years of age. A large number of borderline cases are there where the sole premise of the case hangs on the question of whether the girl was below the age of 18 or not. Young couples’ romantic relationships get bludgeoned and the guy faces jail time under POCSO. Decriminalization of POCSO from 18 to 16 age is under discussion for it.
At the same time, another genuine concern is of potential misuse of 16 years of age to exploit females more freely.
The problems are genuine. But problems lie deeper as well. We have POCSO courts in every district. What about the Protection of Child Marriage Act 2006? It’s clearly more of an awareness problem which requires a deeper look at the status of the society in the present context. The reason why the author of this post believes that age should remain at 18 right now, is because the society is neither ready nor progressive enough as a whole to benefit from this partial decriminalization focused on romantic relationships. If fake cases are being filed to turn a romantic relationship into a POCSO case, maybe there could be other measures to ensure that POCSO offences are only used for clearly demarcated purposes- sexual exploitation of children.
Section 90 IPC which corresponds to Section 28 of BNS provides the minimum age for a valid consent at 12 years. Age of 12 years is quite significant in criminal law because Section 82 IPC plainly mentioned that nothing is an offence which is committed by a child below seven years of age. Section 83 puts a condition for children aged 7 to 12 years, and if their mental understanding is not as developed at the time of committing the offence, they may also be let go of committing the offence. Above the age of 12 years, criminal law thinks that a person has the ability to understand the nature and consequences of their actions. Juvenile Justice Act has taken all the attention from this provision of 12 years of age, but the fact is we have continued to treat actions of a person above 12 years of age to at par with any major person since 1860 and it continues to this day. Age of consent in Section 28 BNS is still 12 years only. But in offences like Kidnapping and rape, females upto the age of 18 years have been given a cloak of protection.
Before we could think of reducing the age, the needs of the society in changing times must be thought over as a whole, and not just a small percentage of females who are educated and who deserve a better choice for their individual lives once they reach 16 years of age. Before assessing the needs of the society, the laws that protect female minors under POCSO, BNS and Protection of Child Marriage Act must be popularised and people must be made aware of it, especially young couples. Instead of changing the law haphazardly, young boys and girls should be informed and they should be convinced to wait till the age of 18 years before any kind of sexual contact.
If age of consent could be 12 years for one purpose, it could possibly be 16 years for sexual relations as well. Word of caution is only in respect of disturbing a law that has a potential for misuse, and making a law that might come with its own set of problems. Before reducing the age of consent from 18 to 16, females teenagers should be equipped with every key piece of knowledge to truly understand the nature and consequences of their actions.