Nuances in the debate on the age of consent

Debates on children’s issues often erupt into public controversy, and the current discussion on the age of consent is no different.

- Enakshi Ganguly

The latest trigger isa petition in the Supreme Courtof India challenging the criminalisation of consensual sexual activity between adolescents aged 16-18 years in ‘Nipun Saxena vs Union of India.

The age of consentis not the sameas the age of majority or the age of marriage. It simply marks the age at which an individual can legally consent to sexual activity. The debate over this age has existed since the late 1800s, with the threshold shifting from 10 years to 16 years in 1949. It remained at 16 until the enactment of the Protection of Children from Sexual Offences (POCSO) Act in 2012, which raised it to 18 despite concerns about the practical implications of sucha change.

Evidence shows that adolescents do engage in sexual relationships regardless of adult misgivings. According to the National Family Health Survey (NFHS-5, 2019-21), nearly 40% of women aged 25-49 had their first sexual experience before turning 18. The courts are inundated with what are commonly called “love cases”—criminal proceedings arising from consensual adolescent relationships. Studies suchas the 2017 HAQ: Centre for Child Rights study and Implementation of the POCSO Act: A Study of the Functioning of Special Courts in Delhi and Mumbai” by Enfold Proactive Health Trust documented similar trends across four states and revealed how these cases are occupying court time, and also end up in acquittal by the courts. Most accused in these cases are boys between 16 and 18 who enter consensual relationships with peers.