4 months ago
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On January 10, the Supreme Court (SC), successful its judgement successful the State of Uttar Pradesh versus Anurudh & Anr., acknowledged the increasing misuse of the Protection of Children from Sexual Offences Act (POCSO), 2012 successful consensual, romanticist teen relationships, wherever 1 enactment is simply a minor. It urged the Union authorities to initiate corrective measures to exempt genuine teen relationships from the peculiar kid extortion law’s rigorous application. This has revived the statement connected the ‘age of consent’.
The ineligible model
The property of consent refers to the legally defined property astatine which an idiosyncratic tin consent to intersexual activity. In India, it is presently 18 years, arsenic established by the gender-neutral POCSO Act. Anyone beneath this property is classified arsenic a “child”, making their consent to intersexual acts legally irrelevant. Consequently, intersexual acts with minors are treated arsenic “statutory rape”, based connected the ineligible presumption that children deficiency the capableness to springiness valid consent. Section 19 of the POCSO Act mandates that immoderate idiosyncratic who suspects oregon has cognition of an offence nether the Act, whether apt to hap oregon already committed, indispensable study it to the section constabulary oregon the Special Juvenile Police Unit.
The 18-year threshold was firmly cemented successful the broader transgression instrumentality model by the Criminal Law (Amendment) Act, 2013. This Act notably amended, among others, Section 375 of the Indian Penal Code (IPC), which defines ‘rape’ and, until 2012, had acceptable the ‘age of consent’ astatine 16 years. The amendments, aimed astatine strengthening laws related to intersexual offences against women, aligned IPC’s Section 375 with the 18-year property stipulated successful POCSO, thereby ensuring broad extortion against kid intersexual abuse. The Bharatiya Nyaya Sanhita (BNS), 2023, retained this position: Section 63 defines rape to see intersexual acts with oregon without consent if the pistillate is nether 18.
Historically, India’s property of consent has evolved importantly — from 10 years nether the 1860 IPC to 12 (Age of Consent Act, 1891), past 14, and subsequently 16 until POCSO raised it to 18 successful 2012. Importantly, the property of consent is chiseled from the ‘minimum property of marriage’, which nether the Prohibition of Child Marriage Act, 2006, is 18 for females and 21 for males.
Arguments successful favour
In caller years, the statement implicit the property of consent has intensified, peculiarly owed to a surge successful POCSO cases involving adolescents aged 16-18, wherever the miss often testifies to ‘consensual sex’. Advocates for lowering the property of consent reason that the existent instrumentality fails to recognise teen sexuality, infringing connected the autonomy of 16-18-year-olds susceptible of giving mature consent. Underscoring the POCSO Act’s intent, they emphasise that it was designed to forestall kid intersexual abuse, not to criminalise consensual romanticist relationships among older adolescents.
Reflecting the crushed realities of ‘adolescent intersexual behaviour’, the NFHS-4 (2015-16) shows that 11% of girls had their archetypal intersexual acquisition earlier property 15, and 39% earlier 18. An Enfold survey analysing 7,064 POCSO judgments (2016-2020) crossed Assam, Maharashtra, and West Bengal recovered that 24.3% of them progressive romanticist relationships, with 82% of victims successful specified cases refusing to attest against the accused. Another Enfold-Project 39A survey of 264 cases nether Section 6 (aggravated penetrative intersexual assault) of POCSO successful the aforesaid States recovered that 25.4% of them progressive consensual relationships. Therefore, galore advocator for a much nuanced ineligible approach, 1 that respects the consent of those implicit 16 portion ensuring safeguards against coercion, exploitation, oregon maltreatment of authority. They telephone for shifting the speech towards informed, unfastened dialog astir enactment education, relationships, and consent, alternatively than broad criminalisation, which often leads to misuse. In galore Western democracies, the consent property is 16, with safeguards against coercion and abuse. Countries similar the U.K., Canada, and respective EU nations recognise ‘close-in-age’ exemptions oregon the ‘Romeo-Juliet clause’, ensuring that teenagers successful consensual relationships with somewhat older peers are not criminalised.
The situation
However, determination are genuine concerns connected reducing the property of consent. Many judge that specified a determination would hazard weakening the deterrent framework, enabling trafficking and different forms of kid maltreatment nether the guise of consent. The existent “bright-line rule” — which treats each individuals nether 18 arsenic incapable of consenting to intersexual enactment — reflects a wide legislative intent to make an unambiguous portion of extortion for minors nether the POCSO Act and BNS. This regularisation avoids subjective judgments by replacing them with an objective, accordant standard. Individuals against reducing the property of consent admit that courts whitethorn workout “guided judicial discretion” successful isolated cases involving consensual teen relationships, but they caution against codifying specified exceptions successful law.
More worryingly, kid exploitation often occurs by individuals successful positions of trust, specified arsenic household members, neighbours, teachers, and caregivers; a 2007 survey by the Ministry of Women and Child Development recovered that implicit 50% of abusers were known to the child. In specified cases, children often deficiency the affectional independency oregon capableness to defy oregon study abuse, making immoderate assertion of consent meaningless. Diluting the instrumentality would legitimise coercion, suppress disclosures, and contradict the law and statutory committedness to protecting children’s champion interests. Lowering the property would besides hazard encouraging younger children to prosecute successful intersexual enactment prematurely, without the affectional maturity to comprehend its ramifications.
Parliament has consistently rejected proposals to little the property of consent. The Justice Verma Committee had recommended keeping it astatine 16 nether IPC Section 375, but Parliament chose to rise it to 18 successful 2013, aligning with the POCSO framework. The 240th Report of the Parliamentary Standing Committee connected Human Resource Development (2011) rejected recognising insignificant consent successful the POCSO Bill, stating that willingness oregon maturity was legally irrelevant. Similarly, the 167th Report of the Parliamentary Standing Committee connected Home Affairs (2012) supported raising the property to 18 and opposed immoderate ‘close-in-age’ exemption. Most recently, the Law Commission’s 283rd Report (2023) connected the property of consent warned that reducing the property of consent would render POCSO a “paper law”, undermining efforts to combat kid marriage, prostitution, and trafficking.
Legal opinions
Time and again, courts person faced the pugnacious task of upholding the missive of the instrumentality portion recognising that its application, successful immoderate cases, tin inflict existent harm connected those it seeks to protect. In State versus Hitesh (2025), the Delhi High Court (HC) held that “…societal and ineligible views connected teen emotion should emphasise the rights of young individuals to prosecute successful romanticist relationships that are escaped from exploitation and abuse.... The instrumentality should germinate to admit and respect these relationships, arsenic agelong arsenic they are consensual and escaped from coercion.” Similarly, the Bombay HC successful Ashik Ramjaii Ansari versus State of Maharashtra (2023) held that intersexual autonomy includes some the ‘right to engage’ successful consensual enactment and the ‘right to protection’ from intersexual aggression, and that recognising some is cardinal to respecting quality intersexual dignity.
However, successful Mohd. Rafayat Ali versus State of Delhi, the Delhi HC, asserted that “consent is legally immaterial” nether POCSO if the unfortunate is nether 18. Most notably, connected August 20, 2024, the Supreme Court overturned a arguable Calcutta HC ruling that acquitted a antheral successful a POCSO lawsuit involving a 14-year-old girl, reaffirming that POCSO does not recognise ‘consensual sex’ with minors. Yet, aboriginal invoking Article 142 (extraordinary jurisdiction), the apical tribunal declined to enforce a condemnation contempt conviction, noting the miss did not presumption the incidental arsenic a transgression and had suffered much from the ineligible process than the enactment itself, but it besides stated that the judgement should not beryllium treated arsenic precedent.
More recently, connected August 19, 2025, successful a proceeding of a lawsuit astatine the SC, Justice B.V. Nagarathna observed that romanticist relationships betwixt persons connected the verge of bulk property should beryllium seen differently. “Look astatine the trauma the miss undergoes if she loves a lad and helium is sent to jail, due to the fact that her parents would record a POCSO lawsuit to screen the elopement”, Justice Nagarathna observed.
The roadworthy up
While reducing the property of consent is wrong the jurisdiction of Parliament, the SC indispensable measurement successful to clarify the increasing interpretational disagreement betwixt the statutory model and HC rulings, ensuring consistency for investigating agencies and little courts alike. Moreover, laws unsocial cannot code the layered and analyzable realities of teen life. For existent impact, we request a holistic attack with entree to broad enactment education, respect for young people’s autonomy, accessible intersexual and reproductive wellness services, gender-sensitive and responsive instrumentality enforcement, and, supra all, a societal ecosystem that supports adolescents, particularly girls, erstwhile they find themselves astatine likelihood with their families.
Data from studies similar Enfold overgarment a wide representation — determination are excessively galore cases, which stem from consensual romance, that are often weaponised by disapproving parents, which clog courts and erodes spot successful the strategy without addressing basal issues similar mediocre enactment acquisition oregon taste taboos astir dating. The existent situation involves not simply analysing whether the property of consent should stay 18 oregon autumn backmost to 16, but however the instrumentality tin beryllium recalibrated to separate genuine teen relationships from exploitative ones. A wholesale simplification risks diluting kid protection, yet the existent broad regularisation unjustly criminalises young radical navigating consensual intimacy.
Instead of a broad simplification that could unfastened doors to predators disguising coercion arsenic consent, we request a pragmatic tweak: present ‘close-in-age’ exemptions for 16-18-year-olds, accidental wrong a 3-4 twelvemonth gap, coupled with mandatory judicial reviews to sniff retired immoderate foul play, portion ramping up schoolhouse programs connected steadfast relationships, consent, and affectional resilience. This way, we honour teen autonomy without gutting protections, and physique a model wherever kids larn to navigate emotion safely, reducing misuse of the instrumentality and fostering a much empathetic society.
Kartikey Singh is simply a lawyer based successful New Delhi.
