S*X is regarded as a biological need. However, when it is not consensual, it is regarded as rape. In India, the Bharatiya Nyaya Sanhita (BNS), 2023 regards rape as a punishable offence in Section 63. The Protection of Children from Physical Offences (POCSO) Act that was passed in 2012 by the Indian Parliament aimed to safeguard minor children from Physical offences being committed against them. However, as the consent of minors is not regarded as valid Section 63 (d)(vi), S*X with a minor is punishable by relevant provisions of both POCSO and IPC, even when S*X happens with the consent of the minor. And a major flaw in this framework lies therein.
What are the Problems?
When there is a consensual relationship between two minors, as often happens in the stage of puberty, they are supposed to be given rigorous punishments. However, the objective of the legal system is not to punish people having S*X, especially when the act happens with the consent of both of them.
Even when the relationship between one adult and one minor, is based on mutual consent, it can invite punishment for the adult. This makes even a consensual relationship a crime before the eyes of the law, which seems to be absurd. The consent of the minor is not given any importance, and the very act of S*X would be regarded as a Physical offence against the minor. However, this makes things unfair for adults who enter into an emotional and physical relationship with minors with the consent of the latter.
What Does the Law Commission Report Suggest?
In its 283rd Report, the Law Commission gave a few recommendations. It recommended that with an amendment to Sections 4 & 8 of the POCSO Act, the court can be at its discretion to give a lesser punishment to the accused person if the relationship is found out to be “consensual” and when the victim is over 16 years of age. However, even in this case, punishment would be given despite a consent being there.
Also, due to the court’s discretion involved, the court and the people forming the bench will decide on the amount of punishment. This makes it arbitrary rather than a concrete rule.
Many jurisdictions worldwide, due to such problems associated with the traditional approach to consent, have enacted laws to address them. As teenage relationships are a stage of human development and emotional maturity for the act can come before or after the age of 18, criminalizing S*X before this age makes the law imperfect. The age of consent across the world, as per the international standard, varies from 12 – 21 years.
Various changes proposed to the POCSO Act by different organizations, were overlooked. While the Law Commission considered various potential outcomes of reducing the age of consent, it’s possible impact on grooming young children and amending the act to provide judges with discretion.
What Can Be the Ways Forward?
Based on the laws from other jurisdictions and the draft POCSO Act submitted by NCPCR, the age of consent can be kept fixed at 18. However, legality should be there for minors aged 16 – 18 who have consensual S*X with people of the same age group. The same should hold true for those aged 16 – 18 and older individuals aged 18 – 21, provided that the latter are not in an authoritative position to compel the minor to have S*X with him, such as in case of teachers, caretakers etc. With such an amended framework, natural biological developments can be acknowledged. The government should also make changes to the existing laws for the benefit of the population of nearly 253 million adolescents in India.
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