India debates lowering age of consent from 18 to 16. Experts weigh in

India’s legal discourse has a new conundrum. Supreme Court advocate Indira Jaising has appealed to the top courtto consider lowering the age of consent from 18 to 16. The age of consent is the age at which people are considered legally capable of agreeing to sexual intercourse.

Jaising has filed a written submission challenging the blanket criminalisation of sexual activity among adolescents aged 16 to 18.

She has argued that “there is no rational reason or empirical data to justify the increase in the age of consent from 16 to 18 years, when the age was 16 for 70 years.”

Meanwhile, the Union of India has opposed it, saying “the statutory age of consent fixed at 18 years must… be strictly and uniformly enforced. Any departure from this standard, even in the name of reform or adolescent autonomy, would amount to rolling back decades of progress in child protection law.”

A Brief History

The age of consent in India stood at 10 for females and no specified age for men in 1860.

In 1891, it was raised to 12 after Phulmoni, an 11-year-old girl, died due to a rupture of her vagina after her husband forced sex on her, but the accused was only sentenced to one year's rigorous imprisonment.

Following that, the age of consent was increased to 14 in 1925 and 16 in 1940.

In 2012, following the horrific Delhi Nirbhaya rape case, the age of consent was raised to 18 for both males and females under the POCSO or Prevention of Children from Sexual Offences Act.

International Comparision

Countries across the world have lowered or maintained their age of consent to 16 or lower.

In the US, federal law maintains the age of consent as 18, but in several states, the age of consent differs.In Australia, the age of consent varies from 16 to 17 years depending on the state or territory.

Japan had the age of consent as 13 till 2023, while the age of majority is 20 years.

South Africa, too, has the age of consent as 16 while the age of majority is 18.

Inter-caste, inter-faith teenage love

In many cases across the country, parents of interfaith and inter-caste teenage couples have filed rape cases against one of the partners, even though the relationships were consensual.

Jaising noted in her submission to the SC that there has been a 180% rise in prosecutions under POCSO involving minors aged 16–18 between 2017 and 2021, highlighting an alarming trend.

Citizens' view

On being asked about sexual activity among those below 18, Naman Verma, a 28-year-old, said that “it is definitely common, consensually and comfortably practised amongst people under 18. I have learned about instances of sexual activities from people when they were under 18. So, it does happen, even if it is illegal.”

Verma added that “ I think the 'age of consent' in this context does not define the autonomy of a teenager, but also depicts an opinion of the nation; the system. If I, as ruler, have to decide such a thing, I will keep in mind the trends amongst the people engaging in this activity. For instance, 'sex education'. If I am allowing teens to officially engage in sexual activity by their own will, I need to ensure that they are educated and aware of the risks and precautions required to take.

Shubham Ranjan, a 27-year-old designer, said that “lowering the age might help in genuine cases of consensual teenage love. Many boys, especially from minority or lower castes, are wrongfully punished due to family disapproval. A lower consent age could prevent misuse of strict laws like POCSO, but it needs careful safeguards.”

Richa Kapoor, an Advocate on Record for the Supreme Court and a former public prosecutor at the Delhi High Court, says that “with advancement in technology, modernization in education and access to knowledge, 16-year-old teens today are more capable of making mature, educated decisions about their own bodies and relationships.”

Advocate Kapoor elaborated on the protection of children from rape, stating that abuse against adolescents can still be prevented, as "without consent" would still be considered rape.

Advocate Kunal Anand, a designated Partner at Mark Legal LLP, recommends a “close-in-age” in the law. This exception will create an exception for couples who are close to the age of consent and thus prevent false cases.

Anand says that by introducing this exception, “the law would still punish exploitation and coercion but stop unfairly criminalizing teenagers who are in consensual relationships. This change would balance child protection with the rights to privacy, dignity, and personal liberty guaranteed under Article 21 of the Constitution, while also ensuring that POCSO focuses on genuine cases of abuse..”

An alternative to lowering the age of consent is the application of the 'judicial discretion’, which basically means that each case will be considered by the judge and the discretion of the judge would apply to differentiate between genuine cases of ‘teenage love’ and exploitation.

But Anand says that this approach also has its limitations. “It leaves adolescents vulnerable to lengthy criminal trials before relief is granted, as discretion comes only at the stage of judicial decision-making,” he explains.

Need for sex education

India severely lacks sex education among adolescents. The people WION talked to agreed that there is a need for widespread sex education before the age of consent is lowered to allow young adults to make informed choices about their bodies.

“If teenagers are themselves aware and sensible about their sexual health and rights, they would be in a better position to understand consent and also protect themselves from exploitation,” said Namam Verma.

While lowering the age of consent might be the way forward to ensure sexual autonomy for young adults, providing them with information about consent, safe sexual practices and hygiene is a prerequisite.