Why in News?

Recently, the Bombay High Court in the matter of Ashik Ramjan Ansari v. State of Maharashtra & Anr., said that several countries have reduced the age of consent for adolescents to have a consensual sexual relationship and our Country and Parliament should also take note of the happenings around the world.

Background

• In this case, the High Court acquitted a man convicted under the Protection of Children from Sexual Offences Act (POCSO), 2012 for raping a minor girl in 2016.
• Both the man (25-years-old in 2016) and the girl (17-year-old in 2016) claimed that they were in a consensual relationship.
• The High Court noted that the evidence clearly established consensual sexual activity, and the conviction was erroneous.

Court’s Observations

• The HC said the criminalization of romantic relationships has overburdened the criminal justice system by consuming significant time of the judiciary, police and the child protection system.
• The Court observed that though the POCSO Act natural feelings could not stop towards the opposite sex in adolescence, punishing a boy who entered into a consensual relationship with a minor girl, in grip of their biological changes, would be against “the best interest of child” and that “adolescents cannot be deprived of this right”.
• The Court added that the age of consent necessarily must be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must take note of this important aspect.
• The Court further noted the age of consent was 14 in Germany, Italy, Portugal and Hungary, and 16 in London, Wales and Sri Lanka. In Japan, 13 is the age of consent and in Bangladesh, punishment for rape is handed out for sexual intercourse with a girl below 16 years of age. India has probably one of the highest age of consent globally with 21 years for men and 18 years women as per Prohibition of Child Marriage Act, 2006.
• Justice Dangre said that ultimately it is for Parliament to ponder upon the said issue, but being cognizant of the cases, which are coming before the courts, with a huge chunk, being the romantic relationship.

Legal Provisions

POCSO Act, 2012

• This Act was passed in 2012 under the Ministry of Women and Child Development.
• It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is gender neutral act and considers welfare of the child as a matter of paramount importance.
• This Act criminalizes all sexual acts among those under 18 regardless of whether consent is present factually among the minors.
• It provides for the establishment of Special Courts for trial of such offences and related matters and incidents.
• Death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault was introduced in this act by the POCSO amendment bill, 2019.
• Section 4 of this Act prescribes punishment for penetrative sexual assault.
• Under section 2(1) (d) of the POCSO Act, a child is defined as any person below the age of 18 years.

Age of Consent under POCSO Act, 2012

• The POCSO Act raised the age of consent for sexual activity to 18 years from 16 years in 2012 and it denies consensual sexual agency for young persons falling in the 16 to 18 years age bracket.
• In the case of State of Madhya Pradesh v. Balu (2004), the Supreme Court held that the consent of minors has no value in the eyes of law, hence it is not valid.
• In AK v. State Govt of NCT of Delhi (2022), the HC stated that the intention of POCSO Act, 2012 was to protect children below the age of 18 years from sexual exploitation and not to criminalize romantic relationships between consenting young adults.
• In December 2022, the government told the Parliament that it does not have any plan to revise the age of consent.

Criminal Law Amendment Act, 2013

• This Amendment Act raised the age of consent from 16 to 18, implying that sexual intercourse by an adult with a girl below 18 would amount to rape, irrespective of the presence of consent in a given case.