October 12, 2023
Good morning. In today’s either/view, we discuss whether the age of consent should be reduced in India. We also look at the row over devotee dress code in Odisha, among other news.
📰 FEATURE STORY
Should the age of consent be reduced in India?
What differentiates a paedophile from an ephebophile? Nothing – they are both potential criminals in the eyes of the law. An ephebophile is essentially a person attracted to other people who are in their mid-late teenage years. While ephebophilia tries to find justification in concepts such as “woman reaching peak biological reproductive maturity in their mid-teens”, there are other arguments for lowering the ‘age of consent’ as well.
The recently released report of the Law Commission has advised against lowering the age of consent. The report has also advised the government to bring some changes to the present POCSO Act (Protection of Children from Sexual Offences). But do our social and historical realities demand a re-look at this otherwise taboo issue?
On October 2 this year, several things were happening. The nation commemorated the 154th birth anniversary of the Mahatma, the 120th anniversary of Lal Bahadur Shastri, and the Bihar government published the result of its caste survey taking the political spotlight. However, the 22nd Law Commission of India headed by Retired High Court Chief Justice Rituraj Awasthi also submitted its 283rd report on the same day.
The Law Commission of India is a non-statutory body constituted with the objective to advise the Ministry of Law and Justice. The 283rd report submitted to the Union Minister for Law and Justice Arjun Ram Meghwal has opined on the controversial issue of the ‘age of consent’.
‘Age of Consent’ is defined as the age at which a person’s consent to sexual intercourse is valid in the eyes of the law. Should sexual intercourse occur with a person below the age of consent (even if they have consented to such an act), it is considered statutory rape (rape in the eyes of the law). The Law Commission of India has recommended to the Union government that the existing age of consent, which is 18, should not be tinkered with under the Protection of Children from Sexual Offences Act (POCSO), 2012 citing the dangers of child abuse, trafficking and prostitution. People below the age of consent can not consent to sexual intercourse as they are regarded as not having the capacity to make such a decision.
The law commission report was prepared after looking at available judgments, and consultations with the National Commission for Protection of Child Rights, former judges, lawyers, child rights activists, NGOs and academicians, responses from all the high courts, and data from the National Crime Records Bureau (NCRB).
In December last year, the Chief Justice of India DY Chandrachud commented that the legislature must address the growing concern around the age of consent in the country. Several High Courts around the country had also been speaking along similar lines in the country during the time. One such instance was with the Karnataka HC which had found a rise in the number of cases relating to minor girls above the age of 16 years falling in love, eloping and having sexual intercourse, and subsequently attracting the provisions of the POCSO which qualified for statutory rape charges against the men involved. However, in September this year, the Union Minister for Women and Child Development Smriti Irani had replied in the Rajya Sabha that the government was not considering any proposal to reduce the age of consent from 18 to 16 years.
The Commission has asked to allow judicial discretion in POCSO cases where the age difference between the couple is less than three years. Many countries across the world such as Japan, Canada, Australia, China, and Russia have the age of consent at 16 years. However, Indian experts believe that reducing the age of consent will have a direct and negative bearing on India’s fight against child marriage and child trafficking.
VIEW: Age is more than a number
The Madhya Pradesh HC recently observed that there had been “gross injustices” in cases of statutory rapes where de facto consent from the girl child had been present but it wasn’t legally recognisable. Imagine a relationship where a girl is 17 years of age and engages in sexual acts with their partner on his 18th birthday. The law would deem it a statutory rape with a minimum of 10 years of imprisonment or 20 years had there been multiple sexual engagements.
NCRB data reveals that about half of the POCSO Act cases fall in the category of the 16-18 years age group. Mostly such cases are filed at the behest of the girl’s parents who disapprove of the relationship and end up in acquittal wasting court time due to the witness (the girl) turning hostile.
The criminalising nature of the POCSO Act also prevents us from having holistic discussions about the topic where we need to take factors such as cognitive capacity, psycho-social maturity, and emotional development while determining the age of consent. The Act also takes away access to reproductive and sexual health services from many teenagers who may require it since it has been made mandatory for healthcare providers to report such cases to the law.
Furthermore, there are several contradictions in who is deemed a child within Indian laws and when they get the ability to decide. Under the Child Labour (Prohibition and Regulation) a child is considered to be below the age of 14 years. While children under 7 cannot be prosecuted for any crimes, children aged 7-12 can be prosecuted if the court believes they have achieved “sufficient maturity”. Children aged above 16 can also be prosecuted as adults in certain cases.
If the context of the child can determine their legal standing, then the age of consent should also be context-sensitive instead of a protectionist law aiming to curtain the sexuality of growing adolescents.
COUNTERVIEW: Legalising sexual abuse
If one has read Noam Chomsky then one would know how the media ‘manufactures consent’ in the present world. The Law Commission also fears that if the age of consent is reduced then in cases of sexual abuse consent could be manufactured via pressure from the offender or the society. A lot of genuine POCSO cases may not even get to see a trial if the investigating agency determines that the relationship has been consensual. It leaves the victim at the mercy of an ‘influenceable’ police.
Increasing incidents of grooming and cyber crimes such as sextortion in India are classic examples of how children in this vulnerable age group can be trapped and exploited. There have also been reports of victims’ parents being made to sign notarized documents attesting that their daughters had fallen in love due to pressure from the police and the accused. If the age of consent is reduced, it will inevitably provide a safe harbour provision to coerce minor girls into subjugation, marital rape, and other forms of abuse.
The Indian child-rights activist and Nobel Peace Prize winner Kailash Satyarthi has also expressed his fears against the reduction of the age of consent. Young girls being seduced in love traps and then sold off in trafficking for labour, sex work, or pornography is a threat not to be ignored. Introducing the element of consent can provide an opportunity for child abusers to escape the rigours of law and enjoy impunity by using loopholes.
While it remains true in theory that the age of consent and the age of marriage should not be conflated, the two are intrinsically linked in practice due to the country’s social milieu.
- As Law Commission Recommends Against Lowering Age of Consent, Questions on Stigma of Criminalisation Remain – The Wire
- Should the age of consent be revised in India? – The Hindu
- India should consider lowering the age of consent – Hindustan Times
- The case against lowering age of consent – The Indian Express
What is your opinion on this?
(Only subscribers can participate in polls)
a) The age of consent should be reduced in India.
b) The age of consent should not be reduced in India.
🕵️ BEYOND ECHO CHAMBERS
For the Right:
‘Selective justice’: Why Manipur’s Kuki-Zos feel let down by the Centre
For the Left:
Caste census: Why the liberal intelligentsia’s opposition is misplaced
🇮🇳 STATE OF THE STATES
Education Instructors protest (Haryana) – The protesting Work Education Instructors Committee has demanded a meeting with Chief Minister Manohar Lal Khattar following four months of peaceful protests for their unmet demands. The police prevented them from advancing to his house and the members resorted to sitting on the ground. After several hours, a delegation met Chief Principal Secretary to the CM Rajesh Khullar at his residence where he reassured the members.
Why it matters: Since 2014, Work Education Instructors have been working in government schools under the Sarva Shiksha Abhiyan initiative. The members have been protesting since June for the inclusion of the Bylaws of 2013. Previous government assurances weren’t met with the desired results.
Relief for senior citizens (Karnataka) – The Karnataka High Court provided relief to seniors following a judgment on a case concerning clarification on the legal existence of the owners’ association to continue paying maintenance charges. The case involved a senior citizen couple whose electricity connection was disconnected in 2018. The couple were living in their flat in Mangaluru without power for five years and were helped by neighbours and using candles at night.
Why it matters: The court stated that the power connection should be restored after the advocate of the homeowners argued that as per Section 56 of the Electricity Act, 2003, the connection can’t be disconnected for any reason except for non-payment of bills or dues and other rightful dues to the Mangalore Electricity Supply Company.
Dress code for devotees (Odisha) – A decency code for devotees by the Puri Shree Jagannath Temple Administration (SJTA) has sparked a debate on moral policing. The administration has asked devotees to wear appropriate clothes and avoid distasteful attire. The administration has defended the decision, citing it was for a greater cause. An official said this wasn’t a dress code, and it just didn’t want devotees to wear tattered jeans, short pants, skirts or anything revealing.
Why it matters: Some have questioned the administration’s policy by saying they have no right to dictate what people should wear. It could also be read as a violation of constitutional rights and the right to privacy. Social activist and lawyer Biswapriya Kanungo argued that decency is a relative term and this is a case of majoritarian morality undermining constitutional rights.
Bridge collapse report (Gujarat) – A Special Investigation Team looking into the collapsed suspension bridge in Morbi informed the High Court of operational and technical lapses in the bridge company’s management. The report stated that the company, Oreva, and its management, including the managing director, should be held responsible. The team found several design faults post-renovation. It said the company didn’t seek technical advice from an expert agency or consult the civic body before awarding the contract.
Why it matters: The British-era suspension bridge on the Machchu River collapsed last October, killing 135 people and injuring 56. The repair work was given to Oreva which then assigned it to a non-competent agency. The work was done without any technical experts. There were also no restrictions on the number of people who could cross the bridge.
Money to tackle climate change (Assam) – The Asian Development Bank (ADB) will provide a $200 million loan to the state to strengthen flood and riverbank erosion risk management along the main stem of the Brahmaputra River. The money will also be used for climate and disaster resilience projects and food security. It’s estimated the projects will help about 1 million people and increase crop production over 50,000 hectares.
Why it matters: Among all the states and union territories, Assam ranks seventh in the likelihood of natural hazards and is among the lowest ranked in achieving the Sustainable Development Goals. This has been due to the continued erosion of the Brahmaputra River dating back to 1980. There have been devastating floods along the river for decades which disproportionately affected the poor.
🔢 KEY NUMBER
$44 billion – According to the Indian National Space Promotion and Authorization Centre (IN-SPACe), the Indian space economy could reach $44 billion by 2033. This would be 8% of the global share compared to the current 2%.