The courts in India are flooded with instances on the rampant misuse of the POCSO Act (Protection of Children Against Sexual Offences Act of 2012), during which consenting youngsters are prosecuted for acts that change into unlawful merely due to their age. The judiciary, over the past couple of years, has repeatedly urged lawmakers to separate the ‘age of consent’ from the ‘age of marriage’. The Chief Justice of India, Justice DY Chandrachud, whereas addressing the National Stakeholders Consultation on the POCSO Act, asserted that the legislature ought to take into account rising considerations referring to the age of consent beneath the 2012 Act, which is eighteen years. 

The POCSO Act (Prevention of Sexual Offences Act), 2012, criminalises all sexual actions for these beneath 18, even when there may be consent between the 2 minors. The minimal age of consent for sexual activity was raised from 16 to 18 years in November 2012, when the legislation got here into drive. The legislation says any sexual exercise with or with out the girl’s consent when she is under 18 constitutes rape. Anyone under 18 is taken into account incapable of giving consent.

“This anomaly was highlighted by the Justice Verma Committee constituted after the Nirbhaya case,” Aparajita Singh, senior advocate, Supreme Court, defined. 

“The committee recommended amending POCSO to reduce the age of consent to 16 to avoid contradiction with the IPC (Indian Penal Code). However, instead of amending POCSO, parliament amended the penal code to increase the age of consent from 16 to 18 in 2013,” she mentioned.

The age of consent was launched by way of the Hindu Marriage Act, 1955. According to Section 5 (iii) of the Act, the boy ought to have accomplished 21 years and the woman ought to have accomplished 18 years on the time of marriage. Section 4 of Special Marriage Act, 1954 lays the identical age of consent for marriage in India. The Child Marriage Restraint Act (1929) and even the newest Prohibition of Child Marriage Act, 2006, prohibit marriage earlier than the age of maturity.

Closely associated to the authorized ‘age for marriage’ is the problem of ‘age for consent’, which denotes the minimal age at which an individual is taken into account to be legally able to consent to sexual activity.

Overriding the conservative view of premarital intercourse within the nation, High Courts in varied situations have interpreted the POCSO Act to safeguard the curiosity of consenting {couples}. The Supreme Court has taken the lead and made its place clear.

Recently, a bench of Justice KM Joseph and Justice BV Nagarathna, refused to intervene with the order of the Rajasthan High Court cancelling the proceedings in opposition to the husband of a minor. A single decide bench of Justice Bharati Dangre of the Bombay High Court just lately made a distinction between the age of consent and age of marriage. The decide emphasised that sexual acts aren’t confined to marriage and each society and the judicial system should be aware of this.

The abuse of the method is obvious from the truth that between 2010 and 2013, a complete of 1,728 instances had been registered in Tamil Nadu, of which 1,274 instances stay pending after a decade. The Madras High Court has determined to establish the instances that contain a consensual relationship and cancel them if they’re impacting the way forward for the youngsters concerned.

These instances are primarily these during which dad and mom filed instances of rape in opposition to the boys with whom their teenage daughters had been concerned or eloped. While there have been discussions about having a uniform authorized age of marriage at 21 for each girls and boys, the federal government has been silent about decreasing the age of consent to 16 years.

Raising the age of consent to 18 years on paper would not change the bottom actuality that adolescents under 18 do take pleasure in sexual actions, that are deemed unlawful by legislation. Criminalisation and stigmatisation have led to sexual and reproductive well being challenges, adolescent being pregnant, and early childbirth, together with unsafe abortions amongst adolescent women.

This is a traditional instance of the legislation gone improper, mentioned Aparajita Singh.

“At an age where children just begin to explore the world, a boy in love with a consenting underage girl is branded a criminal. The investigation and prosecution permanently scars young minds. The courts are interpreting the law creatively to protect the hapless victims. However, the process itself is a punishment and by the time the court grants relief the damage is already done. Now that there is ample data to show the hounding of adolescents, it is time for the legislature to step in and undo the damage brought about by the amendment,” she mentioned.

International agreements uphold 18 years because the minimal age for consent to marriage, however rights legal guidelines don’t suggest age limits for sexual consent. However, the world over, the rights of adolescents in relation to sexuality are recognised.

Many societies and cultures hyperlink age for sexual consent to puberty. Traditionally, in India, intercourse and marriage have been thought of synonymous. However, provided that the age for puberty has dropped and society has modified, there are considerations in regards to the age for sexual consent and its implications on the well being and psyche of the younger folks.

The courts have rightly mentioned that it’s excessive time the legislature seemed into the gray space leading to criminalising consensual teenage relationships, by decreasing the age of consent from 18 to 16 years. This will guarantee reforms and entry to sexual and reproductive well being providers to adolescents, together with complete intercourse training to assist them make knowledgeable selections.

 The debate about decreasing the age for consent just isn’t meant to advertise promiscuous behaviour, as some critics could argue, however moderately represents a progressive step.

(Bharti Mishra Nath is a senior journalist.)

Disclaimer: These are the private opinions of the creator.