Recently, while hearing an appeal by a man who was sentenced to 10 years in prison for maintaining a consensual relationship with a minor girl, the Bombay High Court said that it is high time India considered reducing the age of consent for sex. The court pointed out that after the enactment of the Protection of Children from Sexual Offences (POCSO) Act, 2012, many adolescents are being prosecuted for consensual relationships with minor girls. Should the age of consent be revised in India? Bharti Ali and Shraddha Chaudhary discuss the question in a conversation moderated by Abhinay Lakshman. Edited excerpts:
There are multiple perspectives in this debate — for instance, the psychological and biological perspectives that deal with the ability to give consent and the perspective on exercising autonomy. How should the debate in India be centred?
Shraddha Chaudhary: We shouldn’t think of the debate in one or another of these terms. We need to take an integrated and holistic approach. You mentioned autonomy in the context of law. But can we define what autonomy really signifies? And what it means without considering things like cognitive capacity, psycho-social maturity, and emotional development? So, we need a lot more axes in this debate. We need to think of experiential and neurobiological factors. Even economic factors might be relevant. It is most important to keep the discussion practical, in terms of what it is that we’re trying to achieve.
Comment | Child, law, and consensual sex
Bharti Ali: We want to protect children from harm. But we can’t protect them by criminalising certain activities. While we understand the need to ensure that every child up to the age of 18 years should be entitled to all rights, including the right to be protected from harm, the fact is that children have evolving capacities which need to be recognised.
Shraddha Chaudhary: Often, the criminalising approach of the law, especially if you look at the POCSO Act, also prevents us from having a more holistic discussion on the subject. The moment you come to know about any instance, you have to report it. So, not only can you not help the adolescent in case they need help, whether it’s psychological or mental social support, but you also can’t study trends. So, a lot of the discussions that we’re having now are either anecdotal, or based on evidence from other countries. And that completely misses the cultural context of India, which is so important.
We often see in POCSO cases that a trial is held and then the court rules whether the sexual interaction was consensual or not. Can we figure out a way of measuring consent before it becomes a trial?
Bharti Ali: As Shraddha said, whenever adolescents approach service providers for any intervention, the biggest fear is that it will get reported. Now, even if schools, hospitals, and counsellors were to report these cases, are we saying that the law must make it mandatory for every person to pursue a legal case? Can you force me to file a legal complaint if I am not interested in filing a legal complaint? That’s an important question.
Soon after a report is made, interviews with the boy and girl should not be carried out by the police. The first interview should be done by a social worker or a support person, and we have those provisions in law. There are supposed to be two social workers with every special juvenile police unit. These are people who can be brought in to interview and interact with the child or the adolescent and ascertain whether they wish to pursue a complaint or not. Whether there has been consensual sexual activity and whether that consensual intimacy was exploitative or non-exploitative are factors that they can be asked to ascertain at that point. But unfortunately, we have given them the mandate [to ask questions] only after an FIR is filed. Much of the evidence tells us that in many cases, the girls turn hostile in court, and these cases end up in acquittals. So, why are we forcing them to pursue the legal complaint and also burdening our courts?
At some level, the state is making a decision as to when or at what age a person can be competent enough to give consent. This is despite biology showing that this capacity develops differently among different people.
Shraddha Chaudhary: You’re right in saying that for ease of convenience, we might have to indicate some sort of age or draw some line. And no matter where we draw the line, there are probably going to be issues because there are some people who won’t be covered by it and in some instances, too many people will be covered by it. But regardless of that, that is a very strong case for reconfiguring the age of consent, and how we understand it in the first place. So, instead of saying outright that we should reduce it to 16, or 15, or 14, or 12, we first need to ask, when is consent relevant? And what are the questions that go behind understanding the relevance of consent? Consent to whom and in what circumstances? Our answers regarding age and capacity might differ based on these questions and the answers to them. Any age of consent should be context-sensitive. It’s better to look at it in terms of capacity, which will help you determine age, but different capacities for different kinds of activities for different kinds of circumstances might help us have an understanding of consent which is more reflective of the developing capacities of adolescence.
Also read | POCSO and the persecution of young love
Bharti Ali: The age of consent, prior to the enactment of POCSO was 16 in the Indian Penal Code (IPC), but cases were still being registered. Even then, it does not take away from the fact that if the victim’s testimony gives confidence to the court, then irrespective of the age of consent, the court will go with that evidence. At this point, I don’t think we have enough research to inform us whether it should be 14 or 16. And how do we differentiate between various circumstances and situations even if it is 14 or 16? Or where both the victim and the accused are minors? Those areas require a lot more research before we can take a call. But as of now, I’m sure one decision can be taken, which is to lower the age of consent to 16 as it was in the IPC prior to the POCSO Act.
But even as courts recognise this fluidity in age of consent and the competency of giving consent, how is it possible to code this fluidity into the law? Is it possible?
Shraddha Chaudhary: Principally, yes. One way to do it might be to have different ages of consent for different kinds of activities. But that is again something that needs to be looked into far more. The second would be to recognise that no matter how strongly you word the law, there is always going to be discretion being exercised. No matter where — whether at the police station or at the prosecutor’s office or at the judge’s chambers — you are, you would use discretion. It is important to have certain guidelines and measures of accountability in place. And this in combination with some sort of fluid understanding of the age of consent could probably be a first step towards what you’re asking.
Comment | Judging a decade of the POCSO Act
Bharti Ali: The first stage, as I said before, is at the police station. Someone interviews the child and is able to figure out whether the child wants to proceed with a complaint or not. And the reasons can help the police in taking the call of whether or not an FIR should be filed. A lot of cases involving those who are 16 and above need not necessarily be converted into an FIR. At the second stage, if an FIR is registered, and the police finds out during the investigation that there was non-exploitative, consensual intimacy, then they can file a final report, and that can go to the court. At the third stage, the courts can call the witness and verify if there is any change in the situation or the stance, and then close the case. There may still be cases which continue through the trial. And towards the end of the trial, they might discover that there were other pressures working on the child. That’s where the courts unfortunately don’t have discretion. Because once it is a statutory offence, they have to go by what is laid down in the statute, where the minimum sentence is 10 years for penetrative sexual assault and 20 years if it’s aggravated penetrative sexual assault. Now one of the elements of aggravated penetrative sexual assault is repeated sex. And in a romantic relationship, there is repeated sex. So, invariably, all of them get booked as aggravated penetrative sexual assault, and the courts are left with no discretion there. What is essential is that we should not be taking away any support, any reproductive and sexual health services and access to those services from adolescents who need it. Just because the law says that a case has to be pursued, you can’t deny those services.
If the government were to decide to conduct a study tomorrow, what do you think is essential for us to find out in order to progress towards a better understanding of consent?
Shraddha Chaudhary: We first need more and better information on what kind of sexual practices adolescents are engaging in, at what ages, and the impact of these interactions on them. That information can help us meaningfully characterise these relationships as non-harmful and non-wrongful and also recognise trends of grooming and exploitation that are going on. We also need to look into how social norms around sex and sexuality that lead adolescents to make decisions which may not be optimal for them. It’s worth considering whether it’s in their best interest for each of these sexual interactions to actually have to end in marriage, and what impact that would have on their lives.
Shraddha Chaudhary is PhD Researcher, Faculty of Law, University of Cambridge and Lecturer, Jindal Global Law School; Bharti Ali is Co-founder and Executive Director of the HAQ Centre for Child Rights