The idea of consent

Category
Society
Published
9th Mar, 2024

Context

The recent case involving a Class 12 student accused of raping his 17-year-old acquaintance, leading to his interim bail for board examinations, highlights concerns regarding consent and sexual relationships among minors, despite legal experts asserting that consent is irrelevant in such cases.

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What changes are required?

Awareness about consequences: While the idea of consent, along with “good touch” and “bad touch”, has made children and adolescents aware, most children are unaware that sexual intimacy of any degree is punishable according to the Indian Penal Code (IPC) and Protection of Children from Sexual Offences (POCSO) Act.
- In India, consensual sex between minors is a criminal offence or consent in immaterial.
Amendment in POCSO: The POCSO Act needs certain amendments to handle cases where there is “tacit approval” since such cases do not “merit to be dealt with the same severity as the cases that were ideally imagined to fall under the POCSO Act”.

Law Commission’s Recommendations

The 22nd Law Commission of India has examined these concerns and, in 2023, published recommendations in the 283rd report Age of Consent under the Protection of Children from Sexual Offences Act, 2012.
In its Report, the Law Commission does not advise any modification in the existing “age of consent” under Section 375 of the IPC or the POCSO Act. However, the Law Commission sought an amendment to POSCO so that “the court may, in its discretion, impose any lesser sentence on the accused than the minimum sentence prescribed…”.

Society’s intervention: Due to adolescents' limited understanding of the legal ramifications of sexual intimacy, there arises a crucial need for society to step up efforts in building awareness and establishing support systems.
Education: There is need for a more comprehensive life skill education on issues related to sex and sexuality.

Issues with the Current Age of Consent

In India, the age of sexual consent is set at 18, which means that sexual activity involving anyone under this age is considered a criminal offense, even if both parties are willing participants.

It criminalizes consensual relationships between teenagers aged 16 or 17
India's age of consent is significantly higher than the global average.

Arguments in Favor of Lowering the Age of Consent in India

Counterarguments and Concerns

Lowering the age of consent to 16 in India would align the law with the biological and emotional development of teenagers.
It would reduce the criminalization of consensual sexual activity
Bringing India's age of consent in line with global averages would help ensure consistency with international norms and standards.

It could potentially expose younger teenagers to exploitation, especially if there is a significant age gap between partners.
A lower age of consent must be accompanied by comprehensive sex education which is not available right now.