By Prabal Pratap Singh
INTRODUCTION:
The age of consent is defined as the legal age at which a person can consent to sexual behavior. Minors are deemed incapable of comprehending nature and the repercussions of their acts due to their immaturity of age and comprehension. As a result, sexual conduct with or among minors under a certain age is prohibited by law. The Act identifies a variety of penetrative and non-penetrative sexual assaults and imposes penalties for them. It is worth noting that in postcolonial nations such as India, the penal code is formed from common law laws, and the term “age of consent” is specified in the criminal law solely for females. According to the law, the age of consent is the age at which a girl is legally deemed old enough to consent to sexual behavior, particularly sexual intercourse. It is assumed that a person under the age of consent is incapable of agreeing to sexual conduct. According to the Indian Penal Code of 1860, the age of consent was initially set at 10 years for girls. This was increased to twelve in 1891, fourteen in 1925, sixteen in 1940, and eighteen in 2013. Sexual behavior with a girl under the stipulated statutory minimum age constituted rape, regardless of the girl’s permission. We had no age of consent for boys, and it wasn’t until the twenty-first century that our legislators became aware of the risk of sexual abuse of younger males. In 2012, we passed gender-neutral law to protect youngsters from the sexual offense. POCSO set the age of consent at 18 for both boys and girls. Furthermore, POCSO has been warmly praised for addressing a gap in laws against sexual assault on minors, especially males and transgender people under the age of 18. Following this legislation, the Indian Punitive Code (IPC) Sections 375 (defining rape), 376 (giving rape penalty), and 354 (offering definitions and penal provisions for sexual harassment) were changed in 2013 in the aftermath of terrible gang rape in New Delhi in 2012. The Criminal Legislation Amendment (CLA) Act of 2013, which incorporates the rape law modifications, broadened the definition of rape from a non-consensual peno-vaginal penetration offense to a spectrum of penetrative and non-penetrative sexual assaults without permission. includes penetration of the vagina, anus, and urethra by the penis, objects, or other body parts; invasion of the mouth with the penis and un-consented application of the mouth to the vagina, urethra, or anus.
Meanwhile, in addition to raising the consent age, additional measures such as mandated reporting of sexual activity among teenagers, particularly by hospitals, have intensified parental control over teenagers’ sexuality and strengthened regressive societal norms associated with weddings. One of the most alarming trends is the associated hurdles to reproductive and sexual health care for teenagers.
HISTORY ‘AGE OF CONSENT IN INDIA’:
The age of consent was set at ten years in the Indian Penal Code (IPC), which was developed by Lord Thomas Babington McCaulay and implemented during British control in 1860. Only when the woman was under the age of consent was marital rape made a crime under the law. The first detailed documentation of how India’s age of consent law became correlated with the age of marriage occurred during the conflict by social reformers in the latter half of the 19th century to raise the age of assent to 12 years with the explicit aim of expanding the age of marriage. Child marriages were popular in India, and newborn weddings were also practiced in some areas, such as Bengal. Between 1880 and 1891, there was a determined and long-lasting campaign by Indian social reformers to put an end to this practice by vigorously pleading with the British administration. They maintained that it was fully within the government’s lawful authority to investigate this, considering that the marriages were not made with the girls’ permission and had highly negative health consequences. On the other side, Hindu nationalists rejected any British effort to end child marriage by-laws or other measures. The British left the sphere of personal laws governing marriages, property, and inheritance alone, to be administered by the community’s religion and customary norms. Not only did nationalists embrace this, but protecting this sphere from outside interference became a nationalist mission.
-The significance of the family in marriage and sexuality:
The Sarda Act, subsequently known as the Child Marriage Restraint Act (CMA), 1929, established a minimum marriage age of 14 years. However, the IPC section 37 established a 13-year age limit for sexual behavior inside marriage. Endorsing sexual behavior with an underage girl inside marriage as legally permissible is akin to accepting marital rape. Both the age of consent and the age of marriage continued to rise until 1978, except for marital rape, which was set lower than the age of consent.
Moreover, It is crucial to note that the terms “age of consent” (for sexual activity) and “minimum legal age of marriage” are not interchangeable. The former is concerned with the act(s) of sexual intercourse and the age at which the young person may or may not agree. The latter concerns the social and legal marriage contract, as well as the age at which a girl or boy is regarded eligible to enter it. Sexual activity is a type of interpersonal interaction that can occur with or without marriage. Marriage, on the other hand, institutionalizes the interpersonal connection by enforcing societal standards and legal structures. Sexual activity that is not married and marriage that offers social and legal validity to sexual acts and procreation interact intriguingly.
AGE OF CONSENT:
The age of consent refers to the age at which a person is considered capable of consenting to sexual conduct. As a result, anyone who has intercourse with an underage person, regardless of the circumstances, is committing a crime. Originally concerned with sexual violence and girls, the age of consent has occupied a central place in debates over the nature of childhood, adolescence, and adulthood since the nineteenth century, and has been drawn into campaigns against prostitution and child marriage, as well as struggles for gender and sexual equality.
-Selective Protections:
It’s worth noting that both the age of consent statute and the marital rape exception to the law have their origins in colonial ideas of women as property. A woman is the father’s property before marriage and the husband’s property after marriage. The concept of statutory rape was created in thirteenth-century England by establishing a consenting age for females of ten years. This legislation then spread to other common law nations, including India. Back then, the law was more concerned with establishing a socially acceptable age at which females may be considered sexually available. The age of consent served to safeguard white, virtuous, upper-class women’s virginity and morality. When the girl did not meet this description, these provisions were frequently disregarded. Girls who had left out of school were pregnant or mothers, or came from low-income families would be expected to assume adult responsibilities. Middle-class girls with education and professional opportunities, on the other hand, may enjoy a longer sheltered childhood.
-Maturity in the legal system:
There is no explicit reference to the law in regards to young people’s consent to sex. It can be deduced from criminal statutes that make sex with people under a certain age illegal. The age ranges vary by country, but for the most part, it is 16 to 18 years old. Marriage between two young individuals is an anomaly in several nations. According to UNICEF, the majority of nations have opted to set the consent age at 16 years.
Although, with time, the Indian Penal Code, 1860, was amended on 21.04.2018 in Section 376 sub-section (3): Punishment for Rape, in which a distinction was introduced in terms of the ‘punitive consequences’ for a person raping a child under the age of 16. This is an implied acknowledgment of the fact that the statute recognizes the age of 16 as the age of sexual maturity.
Because the sociocultural environment is always changing, so is the level of maturity, whether mental or biological. There is a clear distinction between good and evil for a boy or girl at the age of 16, and the individual has gained a sense of higher self by the age of 16. furthermore, we must establish a clear age of consent to sex, apart from criminal law, by paying respect to young people’s increasing capability, age, and maturity. In India, the age of majority is reached when a person reaches the age of 18. While the Indian Constitution outlaws child labor under the age of 14, the legal drinking age in India is 25 years.
These challenges must be addressed for the state to progress. It is not my point here to advocate for a consistent age in all legislation. Age should be established in legislation based on the goal of the legislation; we are concerned here with consent to sexual behavior. Male and female consent should be equal, and the minimum age should match the child’s increasing capability, age, and maturity. The age of consent to sex must be applied consistently to all individuals, regardless of sexual orientation, gender, identity, or intersex status. So because the age of consent to sex is not specifically mentioned in the law, it exposes young individuals to the possibility of incarceration for participating in consenting sex. It inhibits young people from seeking healthcare treatments because they are afraid of being reported to the criminal court system.
-Sexuality, Consent, and Its Misrepresentation in the Law:
Throughout life, sexuality is an important component of being human. Sex, gender, identities and roles, sexual orientation, pleasure, intimacy, and reproduction are all covered. The combination of biological, psychological, social, economic, political, cultural, legal, historic, spiritual, and mystical variables also has an impact.
Consent is received and perceived as voluntarily agreeing to have a sexual connection with somebody with matured sexuality. By consent, the partner is aware that sex is desired. Unless proven differently based on the facts of the case, sexual conduct without permission is deemed rape or sexual assault.
An important aspect is that young couples are bullied by their families into bringing fake rape accusations against their partners, which is not rape but rather an adolescent romance. Sections 375 and 376 of the Indian Penal Code are frivolously invoked in situations to restore the family’s respect and honor in society, despite the young couple’s clear consenting connection.
“Sections 375 and 376 of the Indian Penal Code are frivolously invoked in situations to restore the family’s respect and honor in society, despite the young couple’s clear consenting connection”.To address this argument, Section 114A of the Indian Evidence Act has a mandatory statutory presumption that forces courts to conclude that consent is not present if the victim makes such a claim. Only when the victim asserts a lack of consent does the onus shift to the accused, who must disprove the statutory presumption created against him.
In a 2017 case, the High Court of Himachal Pradesh dismissed rape allegations in State of Himachal Pradesh vs. Varinder Kumar because both parties had consented to have sexual intercourse from the time they were children until they reached the age of majority. In the case of the State of Madhya Pradesh vs. Munna, the Supreme Court ruled that consensual intercourse by a girl beyond the age of 16 cannot be considered rape. The Additional Sessions Judge in State vs. Suman Dass highlighted the girl’s confession of willfully consenting to intercourse in her testimony recorded before the Magistrate under Section 164 of the Code of Criminal Procedure. The judge dropped the rape accusations because there was no evidence that the girl child was persuaded.
REVIEWING THE AGE OF CONSENT (INDIA):
Although the law in India does not specifically acknowledge the legitimacy of live-in relations, the Court has supported the constitutionality of such partnerships on several occasions. The Supreme Court of India declared in the landmark case of S. Khushboo v Kanniammal that live-in relationships are covered under Article 21 of the Indian Constitution.
Legal relationships, on the other hand, are only permitted for those who have achieved the age of majority, which is eighteen years. The Punjab and Haryana High Court’s recent judgments on live-in relationships demonstrate the Indian Constitution’s fundamental rights have very restricted scope and applicability.
Even while this court recognizes live-in relationships as a component of the fundamental rights, the court’s orders largely address the problem of the couple’s age of consent and maturity. The instructions do not take into account the impact of the law on minors aged sixteen to eighteen (16-18), sometimes known as Adolescents.
However, The POCSO Act of 2012 was the first comprehensive recognition of sexual abuse against children in India. This measure was enthusiastically praised across the country for filling a gap in Indian legislation against child sexual abuse by including underage boys and transgender people. The Criminal Law Amendment Act of 2013 raised the age of consent from 16 to 18 years, implying that any sexual intercourse occurring before the age of 18 years, regardless of permission, is statutory rape under section 375 of the Indian Penal Code. After the horrific Delhi gang rape in 2012, the Justice Verma Committee was formed to propose important criminal law reforms to India and The POCSO and Indian Penal Code should limit the illegality of adolescent sex to sixteen (16) years. The government, on the other hand, decided that the age of legitimate consent should be eighteen years old at the time. The goal of this amendment was to prohibit sexual exploitation of kids by adults by criminalizing the adult who participates in sexual intercourse with a juvenile. The most serious criticism leveled at this clause is that it invalidates and alienates the teenaged girl’s consent while holding the adult criminally responsible.
This change in the age of consent has resulted in several challenges, including the strengthening of regressive social norms, including extensive family control over adolescents’ sexuality, because there is no mention of live-in relationships in the legislature- this allows the executive to falsely charge the adult as well as the courts to adjudicate on issues of love, romance, and eloping. although, The mandatory reporting of sexual activity among teenagers by hospitals, as well as the restriction on abortion by adolescent females without their parents’ agreement, has produced a sense of anxiety among adolescents, preventing them from receiving sexual and reproductive healthcare.
Lastly, The present legal consensus holds that all teenage sexual acts constitute rape. Such a regressive interpretation of the law opens the door to false allegations and misuse of the law. Such reasoning has several faults, including
A.the notion that an adolescent’s every sexual activity constitutes a sexual assault,
B. adolescent’s interests and opinions, as well as those of their families and the judges, are similar.
C.Families always act in their children’s best interests and should have complete control over their sexuality until they reach the age of adulthood.
CONCLUSION:
While addressing the critical issue of child sexual abuse, the POCSO Act has cemented a protectionist and patriarchal control over teenage sexuality. The consent age of 18 years creates an automated script of non-consent, and any proof of consent provided by teenaged females through their testimony of consenting sexual behaviour is ignored. Further, Consent must be based on an individual’s psychological, emotional, and physical development rather than their age of majority. Everyone, regardless of age, should have the right to personal liberty and privacy. It is critical to distinguish between consenting sex and rape, as legal gaps encourage a variety of obstacles that might stymie growth of the society.
