It definitely merits no reiteration that there should be no punishment at all if the relationship is consensual. It must be asked: How can an act which is consensual be termed as rape? One is also tempted to ask: How can consensual relationship be criminalized?

Is it fair to do so? Why can’t consensual relationship be decriminalized? What is the problem in doing so? Why can’t a commendable initiative be made by the law makers in this regard?

It also deserves asking: Why should a female be vested with the potentially dangerous weapon of first having sexual relations with a male and then start later complaining that it was rape and she never consented for it and this happened for 4 years or 5 years or 6 years? This is certainly not hunky dory and merits course correction to ensure that the criminal laws meant for protection of female don’t become potent weapons of abuse in the hands of female! Am I right?

It must be also asked: Are we living in 18th century that a female simply just does not know anything? With time law must definitely change and it cannot be static in perpetuity! When adultery can be decriminalized by the Apex Court in Joseph Shine case a couple of years back then why can’t consensual sex be also decriminalized among male and female of all age groups or at least among adolescents?

Okay, I concur that many will definitely point out as usual that a very young female who is unable to comprehend can be misled and sexually exploited but at the very least, what can certainly be done is that the age level at least must definitely be brought down! Of course, this will certainly ensure that a female of mature age is not able to turn penal laws into weapons of extortion, harassment and humiliation by first having sexual relations with consent and then after few years alleging rape on one pretext or the other! It needs no overstating that when women are getting equal rights to join defence services even in fighting corps then why should they be considered not capable of not being able to comprehend the consequences of having sexual relationship with someone in her right senses while awake?

Be it noted, we cannot gloss over that it is so very courageously and commendably pointed out in the enlightening editorial column titled Go Back To 16 in ‘The Times Of India’ newspaper dated December 13, 2022 stating that:
The Protection of Children from Sexual Offences Act (POCSO) is a widely supported law. But POCSO raised the age of consent from 16 to 18 and has caused considerable disquiet in the justice system. The increase in threshold appears to be out of sync with ground reality. Consider the following. Recently, Tamil Nadu’s director general of police issued a circular to the police asking them to avoid haste in making arrests under POCSO as many cases involve relationships based on consent. Independently, some constitutional courts such as Allahabad High Court expressed concern about abuse of the law when it comes to relationships between teenagers. Last week, CJI Chandrachud pointed out that the presumption of the law is that there’s no consent in the legal sense among those below 18, which poses difficult challenges. He suggested lawmakers address concerns about criminalization of adolescents who engage in consensual sex.

Needless to say, the lawmakers must certainly pay heed to what the CJI Hon’ble Mr Justice Dr Dhananjoy Yashwant Chandrachud has so very rightly, rationally and robustly pointed out as mentioned above. At the very least, the consensual sex between adolescents must be decriminalized promptly! The billion dollar question is: Why Centre and our lawmakers just keep dilly dallying such legal issues like this and so also other vexed issue like the setting up of more High Court Benches in big states like UP which tops the State list in having maximum pending cases yet has just one High Court Bench and that too so near to Allahabad where High Court itself is located in Eastern UP alone and at no other place even though it is West UP which owes for more than half of the total pending cases of UP yet has no Bench due to which litigants of 30 districts of West UP have to travel whole night and half day by train or bus all the way till not even till Lucknow where a solo Bench exists since 1948 but 200 km further away right up till Allahabad itself to secure justice?

Interestingly enough, it is then further pointed out in this same editorial that is mentioned above stating that:
Research suggests that the increase in the threshold of consent to 18 has led to abuse of the legislation. The most recent study covered three states, West Bengal, Maharashtra and Assam. It found that 25% of POCSO listings were romantic cases. Of them, 47% involved girls between the ages of 16 and 18 where acquittals were the norm. The high incidence of cases involving adolescents between 16 and 18 is consistent with NCRB data. Anecdotal evidence suggests disquiet with this aspect of the law also pushes up for pendency. Parliamentarians should revisit the decision to raise the threshold of consent to 18. A decade’s experience provides the rationale for it. If MPs are reluctant to take this up, this is a fit case for a PIL.

It also cannot be just glossed over that in yet another very enlightening, educative and exemplary editorial titled On POCSO cases, CJI has a point in Hindustan Times newspaper dated December 13, 2022 wherein it is pointed out quite specifically that:
Far too often, the law criminalises consensual relationships. This needs to be looked into. In the annals of history, few issues have proven to be as vexing to legislate on than the legal age of consent. Law demands uniformity and strict conformation to the written statute. The nature of relationships, romantic or sexual, is the opposite – it is subjective and hinges on the specificities of the circumstance, people involved and the cultural milieu.

The debate around the age of consent, therefore, is sharply polarized between those who want to safeguard young people from exploitation and abuse, and those who argue that protecting their civil and constitutional rights is important. A decade ago, India appeared to take a position that privileged the former argument. By setting the legal age of consent at an unshakeable 18, the Protection of Children from Sexual Offences Act, 2012 (POCSO), offered almost no leeway to judges hearing cases involving minors in consensual relationships, other than almost certain criminalization.

Last week, the Chief Justice of India, DY Chandrachud, weighed in on the debate. Speaking at a national consultation on POCSO, he said the legislature must address concerns related to the age of consent and acknowledged that cases involving minors who were in consensual relationships posed difficulties for judges across the spectrum, given the presumption of the law is that there is no consent in the legal sense below 18. The CJI is making an important point.

There is growing recognition that while adolescents may not be adults in the legal sense, they do have an understanding of sexuality and consent – one that must be acknowledged, understood and discussed, not criminalised. In India, for example, studies have shown that a large chunk of POCSO cases involve the police and families filing cases against minors who have dared to break barriers of caste, community or faith. The High Courts of Karnataka and Delhi have also raised similar concerns and asked why consensual relationships among willing adolescents are being criminalized.

A study in West Bengal, Maharashtra and Assam by Unicef-India and Enfold Proactive Health Trust found that one in four POCSO cases was linked to a consensual relationship. This has consequences not only for the young people involved but also for the system. After all, as a recent study by the Vidhi Centre for Legal Policy found chronic delays were becoming endemic and acquittals outnumbered convictions three to one. It is nobody’s argument that children don’t need the strongest protection from predators and harassment both online and offline. But criminalizing consent and reinforcing dogma is not the way to do it. The legislature must review this provision.

Above all, how can anyone even our law makers ever afford to just gloss over what learned CJI Justice Dr DY Chandrachud has stated so unambiguously that:
In my time as a Judge, I have observed that this category of cases poses difficult questions for Judges across the spectrum. There is a growing concern surrounding the issue which must be considered by the legislature in view of reliable research by experts in adolescent healthcare?

In conclusion, it thus merits no reiteration that there is an urgent need to revise right now the age of consent without any more dilly-dallying of any kind. There can be no gainsaying that our law makers must definitely most seriously take into account what the learned CJI Justice Dr DY Chandrachud has so very rightly pointed out as discussed hereinabove and take a prompt decision on this! This will certainly help in saving the bright future of many young adolescents and act as a strong protective barrier with clear object to safeguard them from having a criminal track record due to cases being foisted on them by the parents and relatives of the female! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.