Prelims cum Mains

What Madras HC suggested on age of consent & age gap, and the implications?

#POCSO | #Juvenile Justice

The News

      • The Madras High Court recently acquitted a young boy who was accused of sexual assault charges under the Protection of Children from Sexual Offences (POCSO) Act and made a few significant suggestions.


Background for age of consent

      • In India, age of consent was first raised from 10 to 12 in 1892, in 1949 to 15 and in 1983 again to 16.
      • After the Delhi gang rape case of 2012, the Criminal Law (Amendment) Act, 2013 further raised the age to 18.
      • This raise was done in order to reconcile the act with the Prohibition of Child Marriage Act of 2006, according to which 18 years for girls is the minimum age for marriage.
      •  According to section 375 a man is said to commit “rape” if he had sexual intercourse with girl with or without her consent, if she is less than eighteen years of age.


Summary of the news

      • Madras High Court made two significant suggestions while acquitting a young accused of sexual assault under the POCSO Act—
        • The first one is that the age for the definition of a “child” under POSCO act should be reduced from 18 to 16.
        • The second one is that the POSCO Act should also account for the difference in age between the offender and the girl involved in consensual sex.
      • The court directed the government authorities to place its suggestions before the competent authority and initiate appropriate steps to explore if these suggestions are acceptable to all stakeholders.


Understanding the suggestion of reducing age from 18 to 16

      • Suggestions
        • Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act.
        • Such sexual assault after the age of 16 can be tried under more liberal provision.
        • Such liberal provisions can be introduced in the Act itself.
      • Reaction on the suggestion
        • The legal experts and child rights activists welcomed the redefinition of “child”.
        • A Supreme Court advocate called for decriminalisation of consensual sex between those aged between 16 and 18.


      • Reasoning/implications
        • There should be distinction between the cases of teen age relationship after 16 years and the cases of sexual assault on children below 16 years.
        • The provision of 18 years denies consensual sex to the young person in this age bracket.
        • This also subjects them to false criminal complaints, filed by the families which are motivated by casteist, communal or orthodox and regressive views.
        •  This is not in the line with the age of a child in the juvenile Justice act where the age was lowered from 18 to 16.
        • Various studies tell us about a lot of experimental consensual sexual acts in the age group between 16-18, which are being criminalized due to this act.
        • There is an unwarranted criminalisation of consensual or romantic sexual relations.
        • Such cases are also against gender equality where the boy is tried under JJ and the girl is sent to CWC (Child Welfare Committee) whereas both are equal partners in the act.


Understanding the suggestion of accounting age gap

      • Suggestions
        • The age of the offender should not to be more than five years or so than the consensual victim girl of 16 years or more.
      • Reaction on the suggestion
        • The legal experts and child rights activists some of them called for further discussions on accounting the age difference in the POSCO act.
        • Some didn’t agree on the age gap suggestion as they believe that just because there is age gap, it should be criminalized.


      • Reasoning/implications
        • This is because a person who is much older and crossed the age of presumable infatuation or innocence cannot take advantage of the impressionable age of the victim girl.
        • It would prevent a much older person from exploiting the minor.
        •  It is followed in the UK and also in the US there are close-in-age exemptions, called Romeo and Juliet laws.
        • The law at present on this subject is quite harsh and does not takes into account any details and dynamics of a relationship.
        • Those who are against this suggestion said that such the cases with age gap should be seen through prism of power relationship and hierarchies rather than just age difference.


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