AGE OF CONSENT

1. Context

The “age of consent” debate has re-emerged, this time in the Nipun Saxena and Anr vs Union of India PIL pending in the Supreme Court. The Court will examine whether the age of “consensual” sexual relationships, which is currently pegged at 18, needs to be reduced, under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

2. What is the age of consent?

• The age of consent is the legally defined age at which a person is considered competent to give valid and informed agreement to engage in sexual activity. It exists to protect individuals—particularly minors—from exploitation, coercion, and abuse by ensuring that only those deemed mature enough can legally consent.
• The concept is rooted in the recognition that younger individuals may lack the emotional, psychological, and social maturity to fully understand the consequences of such activities.
• The exact age varies from country to country, and sometimes even between states or regions within the same country, depending on cultural norms, social attitudes, and legal traditions.
• In some jurisdictions, there are also “close-in-age” or “Romeo and Juliet” exemptions, which allow consensual relationships between people who are both below or near the age of consent, provided their age difference is small.
• Importantly, age of consent laws often operate alongside other legal provisions, such as those addressing abuse of authority or consent obtained through deception, intoxication, or threats—meaning that even if a person is above the legal age, consent must still be freely given and informed.
• In many legal systems, engaging in sexual activity with someone below the age of consent is treated as statutory rape or a similar offense, regardless of whether the younger person appears to agree

3. What is the reasoning given to reduce the age of consent to 16 years?

• The reasoning often given for reducing the age of consent from 18 to 16 years—especially in the Indian context—comes from a mix of social, legal, and practical considerations.
• One major argument is that many older adolescents, particularly in the 16–18 age group, are already engaging in consensual romantic relationships.
• Under current Indian law, even if the relationship is consensual, any sexual activity is treated as statutory rape under the Protection of Children from Sexual Offences (POCSO) Act, because the legal age of consent is 18.
• This has led to situations where boys—sometimes just a year or two older than their partners—are prosecuted as criminals, often at the complaint of parents who disapprove of the relationship. Supporters of the change argue that this criminalises normal adolescent behaviour and ends up harming the very individuals the law is meant to protect.
• Another reasoning is rooted in the idea of aligning law with social realities. In many parts of the world, the age of consent is 16, and reducing it could bring India closer to international norms.
• Advocates argue that such a change would still protect younger adolescents, while also recognising the growing maturity, awareness, and autonomy of older teenagers.
• There’s also a public health and trust dimension: if the law allows consensual relationships at 16, teenagers may feel more comfortable seeking sexual health services, guidance, and education without fear of legal consequences. This could promote safer practices and reduce risks such as unwanted pregnancies and sexually transmitted infections.
• However, most proposals for lowering the age of consent include safeguards—such as keeping stricter penalties for relationships with large age gaps or where there is coercion, manipulation, or abuse of authority—so that the law still protects minors from exploitation while avoiding the criminalisation of genuine peer relationships

4. What is the POCSO Act?

• The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a special law in India designed to protect anyone below 18 years of age from sexual abuse and exploitation.
• It was enacted because existing laws at the time were seen as inadequate for addressing the wide range of sexual crimes against children and for ensuring child-friendly procedures during investigation and trial.
• The Act defines a child as any person under 18 years of age and recognises various forms of sexual offences, including penetrative and non-penetrative assault, sexual harassment, and the use of children for pornographic purposes. One of its key features is that it is gender-neutral, meaning it protects both boys and girls and treats the offender the same regardless of gender.
• To ensure justice is delivered sensitively, the POCSO Act mandates child-friendly procedures—such as recording the child’s statement at their home or a safe place, ensuring the presence of a trusted adult during questioning, and protecting the child’s identity from being revealed in public.
• It also requires that investigations be completed quickly, ideally within two months, and trials be conducted in special courts to avoid unnecessary delays.
• Importantly, the Act sets the age of consent at 18, which means that any sexual activity involving a person below 18—whether consensual or not—is legally considered an offence. This provision is intended to shield minors from exploitation, but it has also sparked debates when applied to consensual teenage relationships

5. How does the POSCO Act define a child?

• Under the Protection of Children from Sexual Offences (POCSO) Act, 2012, a child is defined very clearly and simply as any person below the age of 18 years.
• This definition is absolute—it doesn’t matter if the person is male or female, mature or immature, married or unmarried. The moment someone is under 18, the law treats them as a child for the purposes of protection against sexual offences.
• Because of this definition, the Act automatically applies to all sexual activity involving anyone under 18, even if it’s between two teenagers in a consensual relationship. This is one of the main reasons why the age of consent in India is legally set at 18, and why the POCSO Act plays such a central role in the debate about lowering it to 16

• The Law Commission of India (LCI), in its 283rd Report submitted on September 29, 2023, recommended that the legal age of consent under the POCSO Act remain at 18 years, rather than lowering it to 16—even amid pressure from high courts urging reconsideration in light of consensual adolescent relationships
• The Commission emphasized that adolescents aged 16–18 are still children who need protection. Lowering the age of consent, it argued, could undermine efforts to combat child trafficking and child marriage, and potentially weaken the POCSO Act to the point where it becomes merely symbolic rather than effective
• Instead of altering the age threshold, the LCI proposed a nuanced solution: introducing guided judicial discretion. In cases where there is tacit approval (i.e., factual but not legal consent) between minors in consensual relationships, courts could apply less severe sentencing—rather than imposing the mandatory minimum penalties applicable to more exploitative conduct
• This approach aims to strike a balance: preserving robust protections for children under 18 while allowing some legal leniency in specific circumstances where prosecution would seem unjust—such as consensual adolescent romance without coercion
• The Law Commission recommended maintaining the age of consent at 18 years under the POCSO Act. Rather than lowering it, they suggested judicial discretion to allow for more compassionate handling of consensual relationships between minors aged 16–18