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The role of consent in the sexual act of Minors in India: A Grey Area under POCSO Act, 2012

The law in the country overseeing the sexual acts between minors have had specialised in recent years. Now it is covered under the Protection of Children against Sexual Offences, 2012(henceforth POCSO). Earlier it used to be covered by the Indian Penal Code (henceforth IPC).

Unfortunately, sexual abuse of children had always been a problem in the country and has been acknowledged formally by providing a specialised law; named POCSO. It is a special law that specialises in criminalising unlawful acts against children; it has increased the reporting of crimes and ensuring justice in a much faster manner. Without a doubt, POCSO has been a significant step.

However, despite being well-structured and detailed, the law has an issue. The issue is that it doesn’t emphasise the consent part between any sexual activity of minors.

Crimes against children have had increased steeply over six times in the last decade; 2008-2018. And most of the cases were of penetrative sexual assault, including aggravated sexual assault.

The spirit of this act describes anyone less than 18 years of age as a child. And the act criminalises any sexual offence against children.

It even criminalises all sexual activity of an individual under the age of 18. In today’s world and age where people are more liberal, consensual sex between minors; been treated as an acceptablenorm. And especially among teenagers living in metropolitan cities. Thus, the provision is behind the times and criminalising all sexual behaviour of an individual lesser than 18 years would be problematic. For instance, consider a 17-year-old; treated as a hardcore criminal; just because he had consensual sex with another 17 years old is not the right measure.

Besides the moral viewpoint, Indian law does not provide clarity on what valid consent is. Which explicitly makes this the second reason why consensual sex between minors is a legal grey area.

In the case of State of Madhya Pradesh v. Balu (2004), the supreme court held that the consent given by the minor is not to be considered valid. Which further had been reiterated by the supreme court and the following subordinate court since then.

However, Article 12 of the Universal Declaration of Human rights (henceforthUDHR), for whom India is a signatory, asserts that every individual has the right to protection against unnecessary interference in his privacy. And, consensual sexual activity falls under the category of privacy.

Consequently, the same got recognition under article 12of the constitution by the Supreme Court in the caseJustice Puttaswamy v. Union of India (2017).

Conclusion and the way ahead:

Recently, the Madras High Court, in the case of Sabari v. Inspector of Police, passedobiter dicta, asserting that any consensual sex above 16 cannot be a criminal activity. Since it’s an obiter dictum, it would be unenforceable. The court additionally suggested that the definition of child under POCSO should change. The change must be from 18 to 16.

Moreover, many countries have 16 years or less as the appropriate age to provide consent and engage in sexual relations. Many places in America, Russia, Japan, e.t.c fall under this category only.

Nowadays, teenagers between the age of 16-18 are sexually active. Often engagement in sexual acts and exploring different sexual aspects are getting common. So, lowering the age of consent is the need of the hour. With the modernising society, the law should also catch up and evolve.


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