Context:

• The Supreme Court of India is currently hearing Nipun Saxena and Anr vs Union of India, a PIL examining whether the age of “consensual” sexual relationships under the Protection of Children from Sexual Offences (POCSO) Act, 2012 should be reduced from 18 years.
• The debate raises critical questions about child protection, sexual autonomy, societal norms, and the vulnerabilities of marginalised girls.

Current Legal Framework:

• POCSO Act, 2012: Criminalises any sexual activity with persons under 18, regardless of consent.
• Legal position: “Consensual” sexual activity with a minor is still classified as sexual exploitation.
• Impact: Many cases involve romantic relationships rather than abuse, yet attract the same legal penalties.

Key Issues in the Debate:

• Vulnerability of marginalised girls:
  • Many girls engage in sexual relationships to escape domestic violence, sexual abuse, or discrimination.
  • Arrest and prosecution of partners under POCSO often result in forced pregnancies, shelter home confinement, or return to abusive families.
• Judicial and social responses:
  • Calcutta High Court case: Acquitted man accused of non-exploitative consensual relationship with 16-year-old, but highlighted legal contradictions.
  • NCRB data: As a result of mandatory reporting under the POSCO Act, cases of child sexual abuse rose from 8541 in 2012 to 53874 in 2021.
  • Praja Foundation report:
    • 54% of POCSO cases involved partners, friends, or known persons.
    • Many were linked to elopement, refusing marriage and deserting the victim.
• Child marriage and socio-cultural factors:
  • 2022 data: 1.6 million child marriages recorded in India, with barely 900 cases registered (India Child Protection report).
  • Drivers: Brahminical patriarchy, poverty, lack of education, and fear of premarital sex. Parents often marry off daughters early to “protect honour,” not out of tradition but due to desperation.

The Consent Dilemma:

• Defining consent:
  • Consent may be enthusiastic, reluctant, manipulated, revoked, or misunderstood.
  • Courts face difficulties in uniformly interpreting consent.
  • POCSO treats all under-18 sexual activity as abuse, making no distinction between coercion and mutual consent in minors.
• The elopement paradox:
  • Girls eloping face isolation, threats, and legal battles, along with pregnancy and stigma.
  • Extending the logic of consent in cases involving abuse by guardians is rare due to dependency and fear of retaliation.

Implications of Blanket Age Reduction:

• Risks: Could increase invisibility of vulnerable girls, reduce legal safeguards, and normalise exploitation.
• Need for nuanced approach: A uniform lowering of age without considering socio-economic context could harm rather than help.
• Policy challenge: Lawmakers must balance protection from exploitation with respect for adolescent autonomy while considering India’s socio-cultural realities.

Way Forward:

• India must move towards a context-sensitive reform of the POCSO Act that distinguishes between exploitative and non-exploitative adolescent relationships, backed by comprehensive sex education and community awareness programmes.
• Leveraging technology-enabled reporting systems, survivor-centric legal aid, and rehabilitative support can ensure both protection from abuse and preservation of adolescent agency.

Conclusion:

• A balanced approach to the age of consent is vital to safeguard vulnerable children without criminalising consensual adolescent relationships.
• Lawmakers must integrate legal reform with socio-economic interventions, ensuring justice systems reflect India’s evolving social realities while upholding the dignity and rights of its youth.