The honorable Chief Justice of India D.Y. Chandrachud on December 10, 2022 appealed to Parliament to have a relook at the issue of age of consent under the Protection of Children from Sexual Offences (POCSO) Act, 2012 as it constituted difficulties for judges examining cases of consensual sex involving adolescents. As per section 3(1) of the Indian Majority Act of 1875 every person domiciled in India shall attain the age of majority on completion of 18 years and not before. The Protection of Children from Sexual Offences Act, 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process. The provisions of the Act criminalize consensual sexual intercourse between two people below the age of 18. There are various dilemmas regarding the age for consensual sex in India. The author tries to look in various perspectives related to it.

Concept of Majority:

Majority could be perceived as a legal age where the individual is considered mature (physically and mentally) enough to make correct decisions relating to an individual’s civil and criminal responsibilities. An individual who attains majority is held responsible for his acts both in civil matters and in criminal matters. The age of majority in most of the countries worldwide is 18 years. Few countries have age of majority below 18 years (from 15 to 17 years) while few countries have age of majority above 18 years (from 19 to 21 years). Juvenile delinquency (Juvenile offending) is the act of participating in unlawful behavior as a minor or individual younger than the statutory age of majority.

Legal status in India

As per section 3(1) of the Indian Majority Act of 1875 every person domiciled in India shall attain the age of majority on completion of 18 years and not before.

Criminal Responsibility

Any act which is done by a child under seven years of age is not an offence (Sec. 82, I.P.C.).

A child between seven and 12 years is presumed to be capable of committing an offence, if he attained "sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion" (Sec. 83, I.P.C.). This maturity is presumed in a child, unless proved otherwise by the defense.

A child under 12 years cannot give valid consent to suffer any harm which may occur from an act done in good faith and for its benefit (Sec. 89, I.P.C.).

A person above 18 years can give valid consent to suffer any harm which may result from an act not intended or not known to cause death or grievous hurt (Sec. 87, I.P.C.).

Concept of Juvenile

Under Section 2 (l3) of the Juvenile Justice (Care & Protection of Children) Act, 2015 defined “Child in conflict with law”  as a child who is alleged or found to have committed an offence and has not completed eighteen years of age on the date of commission of such offence.

In 2012 a total 27,936 minors were charged by authorities for involvement in major crimes (such as banditry, murder, rape, and rioting). According to National Crime Record Bureau (NCRB) data in 2012, two-thirds (66.6 percent) of individuals who appeared before JJB (Juvenile Justice Boards) were between the ages of 16 and 18; 30.9 percent of those surveyed were between the ages of 12 and 16; while the rest (2.5 percent) were between the ages of 7 and 12.

As per the Juvenile Justice (Care and Protection of Children) Act of 2000, anyone under the age of 18 was deemed a minor under this rule, and they were never allowed to stand trial as an adult.

The “Nirbhaya Delhi Gang Rape Case,” which occurred on December 16, 2012 sparked outrage all over India and shocked the whole country. A girl was abducted, raped, and killed on a moving bus in south Delhi by a juvenile and his acquaintances.

The Supreme Court in the case of Gaurav Kumar v. State of Haryana (2015) observed that the Juvenile Justice Act of 2000 needed to be reexamined since it had failed to dissuade minors in the country from committing small as well as grave crimes.

The Parliament passed the “Juvenile Justice (Care and Protection) Act, 2015” which repealed the previous juvenile statutes and made a few significant amendments. The most notable modification was that if a child between the ages of 16 and 18 was suspected of committing a terrible crime, they would be tried as adults.

With the advent of modern technologies and more use of social media there is increase in the contact with different peoples. The society had also widened its views relating to relationships between a male and female. Compared to earlier periods there are more friendships between opposite sex individuals and also relationships between opposite genders. This increases likelihood of sexual contacts between minors.

Sexual acts in minors could have various complications as under:

• Unwanted pregnancies: Due to not knowing proper use of contraceptive measures.
• Mental trauma: In cases of broken relationships, cheating by partners etc.
• Contracting a sexually-transmitted disease [STD] and also placing them at risk for HIV/AIDS.
• Early use of substance abuse.
• Not able to focus on career.

An animal study (on male hamsters) by John Morris, Zachary Weil and Randy Nelson at Ohio State University examined the effects of adolescent sex. They found increase in a depressive-like response was specific to the adolescent sexually paired group. It also exposes males to some increase in inflammation in adulthood." Sex during adolescence can have negative effects on body and mood well into adulthood

Protection of Children against Sexual Offences (POCSO) Act

The Parliament of India passed the 'Protection of Children against Sexual Offences Bill (POCSO), 2011' regarding child sexual abuse on 22 May 2012, making it an Act. The act was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process. The Act seeks mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.

The POCSO act criminalizes all sexual acts with children under the age of 18 and is a sexual offence. This also includes sexual acts where one or both the individuals are under the age of 18. Therefore, two adolescents who engage in consensual sexual act can also be punished under this law. This coupled with the need for mandatory reporting has led to the criminalization of consensual relationships between adolescents. 

This is worry where an adolescent is in relationship with someone with whom parents or guardians are not willing. Especially if partner is from different caste, region or religion.

Parents have filed cases under this Act to 'punish' relationships they do not approve of.

The investigating agencies could also misuse the Act for falsely punishing consenting adolescents. In a 2015 analysis of 142 sexual assault cases in session’s courts of Mumbai, police were found misusing the act in 33 cases, by classifying women who were 18 years old as being between 15 and 18 years of age in their FIRs, in order to criminalize consenting relationships at the request of the parents of the girl.

• The age of majority varies in various countries worldwide. The age of majority as fixed by a particular country presumes an individual responsible for their acts legally. Similarly minors (individuals below the age of 18 years) are assumed mentally incapable for taking rationale decisions having significance as they are unable to understand the acts they are doing as well as the consequences of their act.
• A minor (individual less than 18 years) are presumed to be not able to take decisions relating to them in acts not intended or not known to cause grievous hurt or death. (Sec. 87, I.P.C.)
• Sexual acts among minors could have various complications including physical and psychological which may extend to adulthood.
• Minors could not see the life aspects as to their duties towards family, society and nation and what they should do in adolescence for achieving their goals of life.
• Parents are the individuals who wish the best for an individual’s till one achieves majority.
• Encouraging adolescents to achieve excellence in their field of interest by parents and guardians could help channel their energy for their own developments.
• Having a very good communications between parents and children could direct adolescents for achieving the best in life.

1. Criminalization of consensual relationships under age of 18 years by POCSO Act to be maintained.
2. Age of consent of consensual sex under the Protection of Children from Sexual Offences(POCSO) Act, 2012 should not be lowered from present 18 years to 16 years.
3. Investigating agencies involved in falsely punishing consenting adolescents by forging age under POCSO Act should be punished strictly with stringent actions.