With the Supreme Court weighing in, a growing chorus of experts is calling for decriminalising consensual relationships even if the age of consent is not loweredNew Delhi : With the Supreme Court hearing a pivotal case over whether to lower the statutory age of consent for sexual activity from 18 to 16 years, activists and experts working with children or dealing with cases that fall in the domain of “consensual romantic relationships” bring into focus the various complexities and challenges the situation presents in courts and beyond for “adolescents”.At one end is a strong view that highlights the plight of boys and girls caught in such cases — putting their dignity, liberty and right to protection as teenagers at stake. On the other end are activists, who caution that attempts to change the age of consent could present a situation that could lead to misuse and enable child marriage in the garb of “romantic relationships”.In the case before SC, for instance, senior advocate and amicus curiae Indira Jaising has urged the court to read down the current legal threshold of 18, arguing that the existing provisions criminalise consensual adolescent relationships and infringe on constitutional rights.
On the other hand, the Union govt has insisted that the age must remain 18 to safeguard minors from exploitation, warning that bringing down the age could undermine the country’s child protection framework.An attempt to address the complexities was also made by the Law Commission in its report on the issue in 2023. It had advised against lowering the age of consent from 18 years. It also suggested amendments in the Pocso Act to introduce guided judicial discretion by the special court in the matter of deciding on sentencing in cases involving “tacit approval” of minors between 16 and 18 years old.Swagata Raha, the founder of Enfold, a child rights NGO, has repeated her demand to decriminalise sexual relationships deemed “consensual” — by creating an exception in Pocso for those aged between 16 and 18. “We are not saying that the age of consent needs to be brought down to 16,” she told TOI . “The current provision under Pocso, which sets the age of consent at 18, presents a situation where a romantic consensual relationship between adolescents is treated as a criminal act, on a par with sexual exploitation and rape. This is clearly damaging, and has long-term impact on the life and dignity of young people. To restore balance in law, this needs to change through the introduction of exceptions recognising consent of those above 16 years.” At least one in four cases criminalised under Pocso is “romantic” in nature, she said, citing empirical studies based on judgments.
On the other hand, Bhuwan Ribhu, founder of Just Rights for Children, warned that lowering consent will open a Pandora’s box, legitimising various forms of child rape as well as trafficking and child marriage. “The law is being misunderstood and misinterpreted in the so-called consent debate,” he said, adding, “No amendment to Pocso should be made until the current law is implemented in letter and spirit. With less than 10% conviction rate and compensation awarded in fewer than 1% of cases, the need of the hour is to implement the law before we amend it.”Ribhu suggested that in “genuine cases” of romantic consensual relationships, with appropriate checks and balances, it was possible to ensure protection without tinkering with consent. He felt Pocso could be amended to decriminalise situations, say, where there is a history of a romantic relationship between a boy and a girl and where the latter has been consistent in her statements before child protection agencies and courts, and where there is no gang rape or prior criminal history.However, child justice and criminal lawyer Anant Asthana feels that the issue can be addressed through amendments to Pocso — to create room for judges to exercise discretion with necessary checks to protect genuine cases of romantic relationships. Drawing attention to the lack of child-friendly policing, he highlighted the need to first equip police with a protocol to deal with such cases to protect the identity of the boy and girl.Advocate and founder of Independent Thought, Vikram Srivastava, said any attempt to alter the age of consent would open the doors to misuse and increase the risk of child marriage in the garb of consent, by the parents themselves, as seen in many states. “Among socalled consensual relationships, in most cases we find they are entangled in a series of illegalities leading to elopement. Even for ‘genuine consensual relationships’, checks and procedural safeguards must be provided to filter genuine cases,” he said.Putting across the perspective of adolescents affected by such cases, Sonal Kapoor from Protsahan, which works with child survivors of abuse, said that blanket criminalisation of consensual adolescent relationships under Pocso, even when non-exploitative and rooted in mutual consent, stripped young people of voice, choice and agency.“Lowering the age of consent risks weakening protections against coercion. But keeping it rigid results in young couples being dragged through criminal trials, humiliated and dehumanised by the same laws that are meant to protect them,” she said. “The law must evolve. It must hold space for both protection of children and autonomy of young people.”