Law Commission Report on age of consent missed opportunity to de-criminalise sex between minors

In India, consensual sex between minors is a criminal offence. The law of the land deems consensual sex between minors as “statutory rape” because under the Indian Penal Code (IPC), the “man” and under The Protection of Children from Sexual Offences (POCSO) Act, the “person” has not been defined and therefore can include a minor boy under IPC and a minor person under POCSO. 

Under IPC, a sexual act is rape “with or without her consent, when she is under eighteen years of age”. Under POCSO, the act of sex is called “sexual assault” and the “child” refers to “any person below the age of eighteen years”. 

Though there are no statistics to prove it, there are a considerable number of cases in India where two minors in a consensual sexual relationship are embroiled under either Section 375 of the Indian Penal Code (IPC) or Section 3 or Section 7 of the POCSO Act.

We need to view the question of consensual sexual relationships between minors within the context of adolescent sexuality as a stage of human development. Also, India has 253 million adolescents, a significant proportion of whom would be sexually active. 

Notwithstanding the need for a more comprehensive life skill education on issues related to sex and sexuality, criminalising consensual sexual activity, as our law currently does, is a big issue that needs urgent resolution. 

Concerned individuals devoted to children’s development, some child welfare committees in different states and several courts have expressed the need to address this lacuna in law. They have argued for the need to ensure that boys and girls who are genuinely in consensual relationships do not get criminalised and bear the burden of lifelong stigma.

The 22nd Law Commission of India has examined these concerns and, in September 2023, published recommendations in the 283rd report Age of Consent under the Protection of Children from Sexual Offences Act, 2012. 

The report stated that it was in the light of cases “pertaining to romantic relationships between 16-18-year-olds” that various high courts echoed the opinion that either the age of consent be reduced to 16 years or the trial judge be given “some kind of discretion” while trying such cases to “alleviate the harm and suffering that is inevitably caused to male children or adolescents who engage in consensual sexual relations with female children and are later prosecuted on account of mandatory reporting requirement under law or at the behest of the girl child’s family who disapprove of such relationship.”

In its report, the Law Commission stated, "in considering the issue of age of consent under the POSCO Act, the two competing interests of child protection and consent of child have to be perfectly balanced”. It concluded that “protecting children from any sexual abuse or exploitation, however, must remain the central and paramount consideration in this endeavour.” 

Thus, 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…”. The Report suggested similar discretion under the Juvenile Justice (Care and Protection of Children) Act, 2015.

Of particular significance was that the Law Commission recommended “amendment of Section 375 or 376, as is found suitable” because any reprieve under POCSO would conflict with the Supreme Court judgement in the case of Independent Thought vs Union of India & Anr 2017 that held that Section 375 IPC, “Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”, is to be read as 18 years.

Though it is illegal in India, all child marriages are not void ab initio or have no legal effect from inception, and minor girls can remain within a marriage if they do not initiate the option to make the marriage void. If accepted, the Law Commission’s recommendation would put married girls between 15 and 18 years at greater risk of marital rape, as there would be no legal recourse.

These recommendations of the Law Commission are disappointing. The need of the hour is to build child protection on the foundation of child rights rather than leave it to the discretion of judges.

The factors that the Law Commission has suggested that courts consider in exercising discretion are sound principles that they could have woven into a child rights framework and incorporated into the law itself. These include the need for “approval of the child” and the age difference between the “accused and the child is not more than three years”.

In coming to these recommendations, the Law Commission examined a wide range of questions. They reviewed the evolution of child rights laws, the POCSO, the status of the age of consent before and after the enactment of POCSO, under the Justice Verma Committee, in other countries, and concerning the issues of child abuse, child marriage and child trafficking. They studied how courts have handled consensual relations under POCSO, what the National Crime Records Bureau data reveals and how the consultations with various stakeholders have informed the Law Commission.

The Nirbhaya Act or the Criminal Law (Amendment) Act, 2013 defines “consent” as the “unequivocal voluntary agreement… to participate in the specific sexual act”. Consent could be hard to establish in law and practice, and the complexity is even more remarkable regarding children. 

The Law Commission also noted that there is a possibility of manufacturing consent for consensual sexual acts, especially in “grooming”, where a perpetrator of child sexual abuse builds a relationship, trust and emotional connection with a child to manipulate, exploit or abuse them.

The Law Commission has also expressed concern about unchecked exploitation, especially of young girls, in case the law lowered the age of consent. There is a genuine cause for concern on this as the National Family Health Survey - 5 indicates that 10 per cent of women in the age group of 25-49 years had their first sexual intercourse before the age of 15 and 39 per cent had it before the age of 18 years. 

Curiously, a much lower percentage of men have had their first sexual intercourse at this age — only one per cent of men before age 15 and six per cent before 18 years of age. In a society dominated by patriarchal values, it is unlikely that the earlier age for being sexually active by girls in India is an exercise of free choice. 

Patriarchal bias is an issue of crucial importance and has been seen in several court rulings, and also, as experts have stated in a recent order that held that a “feeble no” may be a yes.

An additional benefit of de-criminalising consensual sex between minors or between minors and adults where the age difference is less than three years is that it may reduce the pendency of POCSO cases in the courts. News reports stated that on January 2023, there were more than 240,000 rape cases under POCSO. 

Courts would get more time to focus on issues of grave concern. These include dangers of child-on-child sexual abuse — NCRB data stated that in 2019-21, 2,353 juveniles were apprehended under POCSO — a threat that we are only now becoming more aware of; the question of child marriage; and the genuine danger that minors, especially girls, face of trafficking and being forced into child prostitution.

We must remember that leading psychologists have stated that “adolescence is the age to explore and understand sexuality. Sexual curiosity in the adolescence [leads] to exposure to pornography, indulgence in sexual activities and also increases vulnerability for sexual abuse.” 

In this light, there is a need to warmly welcome the last recommendation of the Law Commission, which is to “Spread awareness regarding child sexual abuse, sexual and reproductive health as well as the provisions of the POCSO Act”. 

The recommendation included the need for comprehensive and age-appropriate sex education to be a mandatory part of school curriculum and government programmes like the Rashtriya Kishor Swasthya Karyakram. 

There is a strong need to make people in India and worldwide more aware of the need to protect and promote child rights — and primarily to protect children against sexual abuse. The best way to do it is to bring children into the conversation and encourage their protagonism.

It would have been wonderful if the Law Commission’s call for spreading awareness on issues related to sex were coupled with recommendations to de-criminalise the sexual explorations of minors and young adults when they enter into romantic relations, which could include consensual sex. 

With due respect to all concerned, we are forced to see this as a missed opportunity.

(The authors work with ActionAid Association. The views expressed are individual and need not necessarily represent those of the organization.) 

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