Age of consent under POCSO: A need for change?

| Suchitra Singh

Write Introduction + Critical Analysis

Age of consent under POCSO: A need for change?

The age of consent as per the Protection of Children from Sexual Offences Act of 20121
(hereinafter referred, POCSO) is 18 years presently. This Act came into force due to the United
Nations Convention on the Rights of the Child2 (hereinafter referred, UNCRC) which India
acceded to in the year of 1992. The aim was to create a special law to protect children from sexual
offences. The range of age to be considered for the same was 16-18, where children hit puberty
and are sexually active. Before POCSO, the age of consent was 16. However, this was increased
to 18 to stay in consonance with the CRC. Even during the time of enforcing the said legislature
the consent age proposed was 16, which was later raised to 18 in the bill proposed by the Lok
Sabha. This was done primarily due to the protest by certain campaign groups. 3 The legal or logical
backing for the same is not present.

This essay advocates reduction of age of consent for consensual sexual activity between
adolescents to be brought down to 16 years of age, which stands as 18 years now according to the
POCSO and the close- in- age exception to be set as 3 years, by giving legal and logical backing
along with a global approach for age of consent. POCSO was enacted to protect the interest of
children and ensure their safety and dignity. It was a step towards modernization of laws that
protect children to a much more child-friendly, accessible, and approachable one. However, after
years of deliberation and use of funds, the act has its own lacunas - tilting it to a nonprogressive
side.

The act intends to safeguard the rights of children i.e., to build on the guiding principles of right
to nondiscrimination, right to life, survival and development, right to participation (to be heard),
and the best interest of the child. However, the act through its laws fails to attain its goal and
instead ends up criminalizing children. The right to participate or to be heard is also ignored as
consent of a child under the age of 18 is considered void. The act establishes that any sexual
activity with, below, or between people aged 18 would be considered rape, irrespective of the act
being consensual. This denies the right of children to be heard - Article 12 of UNCRC or even in

1
Protection of Children from Sexual Offences Act of 2012
https://wcd.nic.in/sites/default/files/POCSO%20Act%2C%202012.pdf
2
UN Convention on the Rights of the Child 1989 https://www.ohchr.org/en/instruments-
mechanisms/instruments/convention-rights-child
3
Controversy over Age of Consent Delhicourts.Nic.In,2022,
https://delhicourts.nic.in/VWDC_files/sm/Study%20Material%20Training%20Programme%2008-
09%20September-2018/Reading%20Material%20Part%20-
%201%20(%20POCSO%20Material,%20Mock%20Case,%20Contents%20page)/

Electronic copy available at: https://ssrn.com/abstract=4470418

 Age of consent under POCSO: A need for change? | Suchitra Singh

the best interest of the child and even works against the idea of child’s development both
biologically and physically.

The same argument has been upheld by the court in the case of Vijayalakshmi v. State Rep. By
The Inspector of Police4 ``It is now well evidenced that adolescent romance is an important
developmental marker for adolescents' self-identity, functioning and capacity for intimacy”5 - the
court also highlighted the developmental- context theories of adolescence age romance and its role
in helping children identify themselves - the neurological and psychological aspect which tends
children in this phase want to look for partners and relationships not just to explore their identities
but also grow emotionally. It cannot be ignored or could turn a blind eye to whether such relations
turn physical more often or not.6 Non-recognition of such factors and not acknowledging the
changing society and criminalizing any sexual act does not go in line with the idea of having a
child rights protection act. This denies bodily autonomy and turns a blind eye toward practicality.
Unfortunately, making the state paternalize children by putting in a mechanism that controls rather
than protects- which rather than providing children with rights makes them policy and on failure
it criminalizes them.

This age of consent also stands very ambiguous and is not backed by valid reasoning other than
just societal grounds. Interestingly, Section 2 of the Child Labour- Prohibition and Regulation
Act, 19867, defines a child as a person who has not completed his fourteenth year of age. Anybody
above the age of 14 years is considered to be fit enough to work, and take over responsibilities,
but the state do not deem fit to make their personal choices which include their bodily autonomy.

Sabari @ Sabarinathan @ Sabarivasan v. The Inspector of Police & Ors 8. is another case
where the court keeps notice of the infatuation and attraction between teenagers/adolescents which
must not be criminalized. Justice V. Parthiban ruled suggesting amendments in the POCSO,
redefining a child from 18 to 16 years and exclusion of any consensual sexual act after the age of
16 - justice emphasized the need for exclusion of such acts - bodily contact or allied act from
rigorous provisions that deal with sexual assault and instead should be dealt with much liberal
provisions.

The act needs introduction of provisions that differentiate cases of teenage love and relationships
after the age of 16. Adolescents are in the grips of their hormones and biological changes with yet

4
Vijaylakshmi & Anr. v. State, Crl. O.P (MD) No. 3775 of 2012 (Mad. H.C.) (India).
5
Ibid. p.15
6
Ibid
7
Child Labor, Prohibition and Regulation Act,1986
https://www.ilo.org/dyn/natlex/docs/WEBTEXT/27803/64848/E86IND01.htm#:~:text=An%20Act%20to%20prohib
it%20the,children%20in%20certain%20other%20employments.&text=PART%20I%2D%20PRELIMINARY-
,1.,and%20Regulation)%20Act%2C%201986.
8
Sabari @ Sabarinathan @ Sabarivasan v. The Inspector of Police & Ors., Criminal Appeal No.490 of 2018 (Mad.
H.C.) (India).

Electronic copy available at: https://ssrn.com/abstract=4470418

 Age of consent under POCSO: A need for change? | Suchitra Singh

developing decision-making ability9 - are much in need of protection and guidance from the state,
this would be a great step in shielding them from social harassment.

Even though the law is “gender neutral” the unfortunate social structure mostly ends up
criminalizing the boys even in mutual relationships or consensual eloping, a survey conducted
showed that 40% of 600 sexual assault cases[major and minor] in the Delhi -2013 were cases of
consensual sex and elopement by young couples 10, where the girls family had charged the boy for
rape and other criminal complaints as they were against the union - which leads to falsely accusing
the boy. This often leads to behavioral changes and traumatizes children against the justice
system.11 Criminalization also leads to violation of articles 5 and 17 of UNCRC which advocate
access to information regarding mental and physical health. 12

This also violates a child’s right to dignity, privacy, and life guaranteed by Article 21 of the Indian
Constitution - same was observed in the Teddy Bear clinic case which led to an amendment of the
South African laws making the provision unconstitutional for criminalizing consensual conduct
between adolescents.

This should be collaborated with a close-in-age exception and the concept of Romeo and Juliet
laws concept - to remove criminal liability amongst the people who participate in sexual activity
with a person below the specified age of consent 13. It avoids the label of being a “sexual offender”
when the person is involved in the act with their respective partners with consent 14. Consensual
penetrative sexual acts or any other sexual activity between children over the age of 16 years
sharing the same age or sharing a three-year age gap should be acknowledged by the act. This has
been accepted by different states in order to prevent exploitation of minors by older people. Such
an approach must be taken as it is believed that close-in-age consensual relationships are less likely
to be coercive. 15

9
Vijaylakshmi & Anr. v. State, Crl. O.P, Supra.
10
Rukmini S, "Young Love Often Reported As Rape In Our 'Cruel Society'", Thehindu.Com, 2022,
https://www.thehindu.com/news/national/%E2%80%98Stories-behind-sexual-assault-rulings-shine-light-on-reality-
of-rape%E2%80%99/article60342206.ece.
11
Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development, Case CCT 12/13
[2013] ZACC 35 (Constitutional Court of South Africa).
12
Mugdha Mohapatra, "CRIMINALISING ROMANCE? THE PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT",accessed 28September2022, https://www.crccnlu.org/post/criminalising-romance-the-protection-
of-children-from-sexual-offences-act#:~:text=PRACTICAL%20PROBLEMS-
,In%20State%20v.,girl%20had%20consented
13
"Age Of Consent By Country 2022", Worldpopulationreview.Com, 2022,
https://worldpopulationreview.com/country-rankings/age-of-consent-by-country.
14
"What Is A Close In Age Exemption / Romeo And Juliet Law?", Ageofconsent.Net, accessed 28 September 2022,
https://www.ageofconsent.net/close-in-age-exemptions.
15
Essack Z, Toohey J. Unpacking the 2-year age-gap provision in relation to the decriminalisation of underage
consensual sex in South Africa. S Afr J Bioeth Law. DOI:10.7196/SAJBL.2018.v11i2.657

Electronic copy available at: https://ssrn.com/abstract=4470418

 Age of consent under POCSO: A need for change? | Suchitra Singh

The Madras high court in its judgment has suggested a difference of five years in order to avoid
the advantage being taken of the minor 16The same reasoning has been applied in countries across
the world, it helps avoid overcriminalization of the parties involved if the act is done consensually.
Countries like France, Italy, Sweden, etc. also have a close in age exception of 3 years 17.

At the same time, it is worth noting that teenagers have a higher proclivity to enter the "grooming"
cycle with their choice. 18 As a result, when assessing close in age consent, the factors that led to
the provision of consent and/or the context of gaining mutual consent should be verified cautiously
on credible grounds, such as identifying whether there is an element of force, persuasion,
inducement, grooming manipulation of consent on defensible grounds, and so on.

Ultimately any decision regarding the age of consent needs careful consideration and extensive
discussions involving experts, legislators and the stakeholders. The decision needs to take into
consideration the laws pertaining the same across the world, along with the discussions taking
place at the UN assembly. This will not only lead to recognition of teenage relationships but will
also act like a sword as well as a shield to protect vulnerable young individuals.

16
"Age Of Consent: Challenges And Contradictions Of Sexual Violence Laws In India", Taylor & Francis, accessed
28 September 2022, https://www.tandfonline.com/doi/full/10.1080/26410397.2021.1878656.
17
"Age Of Consent By Country 2022", Worldpopulationreview.Com, accessed 28 September 2022,
https://worldpopulationreview.com/country-rankings/age-of-consent-by-country.
18
"POCSO ACT 2012: CONSENSUAL SEX AS A MATTER OF TUG OF WAR BETWEEN
DEVELOPMENTAL NEED AND LEGAL OBLIGATION FOR THE ADOLESCENTS IN INDIA, VENASHREE
ANCHAM, NAVANEETHAM JANARDHANA, JOHN VIJAY SAGAR KOMMU 2021", accessed 28 September
2022, https://journals.sagepub.com/doi/full/10.1177/0253717620957507.

Electronic copy available at: https://ssrn.com/abstract=4470418