Context

Recently Karnataka High Court in Bande Rama v. State of Karnataka quashed criminal proceedings of rape and kidnapping under the Indian Penal Code, under the (POCSO) Act, 2012.

Background (The Case)

• Karnataka High Court quashed the criminal proceedings under IPC on the complaint of a 17-year-old girl’s father against her 20-year-old partner. The girl later, stated in court that the acts were consensual and she had married the accused after she had turned 18. The marriage was registered and a child was born to the couple.
• The High Court observed that if the court would shut its doors to the couple who are married then the entire proceedings would result in a miscarriage of justice.

What is the issue?

• Since the consent of a “child” is immaterial, consensual sexual intercourse with or among adolescents is treated on par with rape.
• With the enactment of POCSO, a number of young couples in consensual and non-exploitative relationships have found themselves embroiled in the criminal justice system.
• It also impacts the delivery of justice as these cases constitute a large burden on our courts, and divert attention from investigation and prosecution of actual cases of child sexual abuse and exploitation.
• There is thus a compelling need for law reform to revise the age of consent and prevent the criminalization of older adolescents engaging in factually consensual and non-exploitative acts.

What is the purpose of the Minimum age of sexual consent?

• The minimum age of sexual consent is the age from which someone is deemed capable of consenting to sexual activity.
• The objective of the minimum age of sexual consent is to protect adolescents from sexual abuse and the consequences of early sexual activity on their rights and development.
• There is a possibility that young adolescents may be lured into sexual activity by older adults making those from disadvantaged settings.
• Underage sexual activity presents a number of risks in relation to sexual and reproductive health, including unwanted or early pregnancy and exposure to sexually transmitted diseases.
• Early pregnancy and motherhood in many cases are, in turn,primary determinants of school dropout for adolescent girls.

What are the options available to victims in such matters?

• The only relief available to the couple is to urge the High Court to quash the case by using its inherent power under Section 482 of the Criminal Procedure Code, “to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Section 482 of the CrPC: Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

High Courts Observation:

• The High court observed that the cases of mutual consent and teenage attraction, arenot an uncommon occurrence at an adolescent age, and, therefore, the age of consent should be reduced from 18 years to 16, so that the boy accused of the crime does not have to undergo punishment under the POSCO Act.
• Several other High Courts too have recognized the normalcy of these relationships and the futility of prosecuting romantic cases owing to the consensual nature of the relationships as well as the harmful impact of continued prosecution on both parties.
• The high rate of acquittals shows that the law is not in sync with the social realities of the adolescent relationship.
• Blanket criminalization of such consensual sexual acts involving older adolescents erodes their dignity, best interests, liberty, privacy, evolving autonomy, and development potential.

Capability to give “free consent”?

• It has been found in most cases in this age group (16-18 years), that girls turn hostile because the sexual act was not against their will and they were not allured or induced into indulging in the act.
• It has also been observed that due to a change in the sociocultural environment in recent decades, teenagers are sensible enough to understand the implications of their conduct.

Provisions of the laws relevant to the situation:

• Our laws do not consider any action by a child under the age of 7 an offence.
• Even if the child is between the ages of 7 and 12, but has not attained sufficient maturity to judge the nature and consequences of his conduct, his act would not be considered an offence.
• After that, it is implied that a child above 12 years of age develops a sufficient understanding of the implications of an offence.

Changing scenario:

• With the changing sociocultural scenario, the assumption of attaining maturitymay also be applied in cases of granting “free consent”.
• One has to note here, that the Child Labour (Prohibition and Regulation) Act defines a child as a person under the age of 14, and, therefore, those above 14 can legally be employed in otherwise prohibited occupations and processes.

Global Scenario:

• Many countries have 16 years or below that as the age of consent.
• Most of the American states, Europe, Japan, Canada, Australia, China, and Russia fall into this category.
• Therefore, the rights of the child (up to 18 years of age) might be protected in accordance with the UN Convention on the Rights of the Child, but the age of consent can safely be reduced from 18 to 16.

Way Forward

• There is a need to define consensual sex as a separate category of crime under a more liberal provision.
• Taking out such cases from the purview of the penal law will also help the police divert its attention toward more serious and complex cases.
• According to the National Crime Records Bureau about half of the POSCO Act cases fall in the category of the 16-18 years age group.Removing cases of consensual sex under this category can help us get a better picture of sexual assault cases.
• There is thus a compelling need for law reform to revise the age of consent and prevent the criminalization of older adolescents engaging in factually consensual and non-exploitative acts.