Decriminalising Adolescent Sexuality in India

Last Friday, the Gwalior Bench of the Madhya Pradesh High Court, while quashing an FIR against a 18 year old boy, accused of crimes under the Protection of Children From Sexual Offences (POCSO) Act, 2012 (“POCSO Act”), urged the Central Government to reduce the age of consent from 18 years to 16 years. A week before, the Meghalaya High Court had also quashed a similar FIR, citing that consensual romantic relationships between adolescents and teenagers did not come under the purview of the criminal law. 

In India, sexual acts with or between minors, i.e., persons under 18 years of age, are considered a criminal offence, regardless of their consent. This provision has been a point of discord among legal experts for a very long time. 

In a 2016 series of study conducted by the Centre for Child and the Law, NLS Bangalore, it was found that on an average, over 20% of the child sexual abuse cases in the states of Assam, West Bengal, Andhra Pradesh, Maharashtra and Delhi, constituted a case of consensual sexual relationship between both parties. 

While the age of consent continues to be a highly debated issue, in this Weekly, let us understand what the law currently says about the age of consent and what is considered an offence. 

Law on Child Sexual Offences in India

Indian law currently criminalises sexual relationships with or between anyone under the age of 18 years, under Sections 3 to 15 of the POCSO Act. So, the law presumes that minors lack the agency to understand the implications of consenting to a sexual act and cannot give an informed consent to sexual involvement. 

Parallelly, the Indian Penal Code,1860 (“IPC”) under Section 375(1)(d)(6)  considers any sexual act with a woman under the age of 18 years with or without her consent, as de facto or statutory rape. Further, according to the 2018 criminal law amendment, between POCSO and IPC, the legislation which lays down a higher punishment for an offence of rape will have an overriding effect. So, often cases of sexual relationships between adolescents get pulled under the stringent provisions of the POCSO Act. 

What is the Age of Consent in India?

In India, the age of consent is clearly understood to be 18 years of age. This is the age at which the law considers a person to be legally capable of giving sexual consent for both girls and boys. 

So, if anyone of any gender, under the age of 18 engages in any sexual act, irrespective of whether they consented to it or not, this will be treated as an offence under the POCSO Act. 

Under Section 19 of the POCSO Act, it is mandatory to report a crime pertaining to sexual assault of a minor. So anyone with the knowledge of such a sexual relationship is legally obligated to report it as a crime. 

What is the Age of Consent across the World?

Different countries of the world follow a diverse threshold for age of consent, taking into account their respective cultural contexts. However, according to the 2023 ‘Age of Consent’ study by the World Population Review, most countries of the world have fixed their age of consent to 16 years. 

Some countries also have a special legal provision called ‘close-in-gap’ which deals with sexual relationships between minors with minimal age difference. For instance, sexual relationships between a 16 year old girl and a 19 year old boy. Under this provision, consensual relationships between the parties involved are not deemed to be a criminal offence.

Legal experts have held this ‘close-in-gap’ to be the crux of determining the culpability in a POCSO case since it qualifies whether the consent was granted under any pressure or influence as is often in the case of ‘grooming’. However, there is no such legal provision in India.