Age Of Sexual Consent In India: Should it be Brought Down to 16?

In India, the age of consent is 18 years for all genders.

Updated
Let's talk sex
5 min read
Age of Sexual Consent: In India, there is a section of people who think that the age of consent should be as it is. Some even argue it should be increased to 21
i

As awareness about sex and sex education increases, the taboo around sex is also beginning to lift, with more and more teenagers experimenting with and exploring sex and sexuality. Should India consider reducing the age of sexual consent in India?

We spoke with a few young people and experts.

Age of sexual consent can be termed as a state-endorsed minimum age at which a person is considered old enough to consent to and engage in sexual activity. In India, the age of consent is 18 years for all genders.

According to Dr Vageshwari Deswal, Associate Professor, Faculty of Law, Delhi University, under law it is forbidden to engage in any sexual activity with a child who is below the prescribed age of consent. Any person doing so is held liable, irrespective of the minor’s consent, as the law regards minors below that age to be incapable of making informed choices. And so, their consent is of no consequence.

‘’Understanding the concept of ‘age of sexual consent’ requires us to dissociate it from age of marital consent. Many countries where extra-marital or pre-marital sex is expressly prohibited use these terms interchangeably. Indian laws are progressive enough to delink these two,’’
Dr Vageshwari Deswal

Age Of Consent In India

The age of consent in India is 18 years which is also the age of adulthood for both genders. But do children achieve sexual maturity at 18? Those in favour of reducing the age argue that's not the case.

‘’Post the amendments to Juvenile Justice Act in 2015, a juvenile between 16 to 18 years of age, who is charged with the commission of a heinous crime may be tried and punished as an adult. If a child above 16 is capable of being punished that means the law has acknowledged the child’s rationality to take responsibility for one’s actions. Similarly, the 2013 amendments in Rape laws prescribe higher punishments where the rape victims are below sixteen years of age. This reinforces sixteen as the age of sexual maturity,’’ says Dr Deswal.

If a child above 16 is mature enough to be held responsible for crimes then the child should also be mature enough to make decisions regarding his/her sexual behaviour, say some experts.

"Looking at NCRB data- fifty percent of POCSO cases are against children between sixteen to eighteen years of age. A deeper analysis showed that most of the cases were of teenage romance rather than sexual abuse. Since POCSO criminalises all sexual activity with or among minors, several consensual acts have also led to unmindful prosecutions and convictions thereby exposing the Janus faced nature of this legislation,’’ Dr Deswal adds.

Should India Reduce The Age Of Consent To 16?

Some students we spoke with certainly think we should.

"According to human physiology, puberty is attained approximately between 8 to 15 years of age for both male or female. Not only physiologically but also psychologically they get more aware of their body and most probably get attracted and curious about the opposite sex. India should reduce the age of consent to 16 from 18, because currently it's illegal for a 16 or 17-year-old to indulge in these activities even if it is just because of their impulsive curiosity.’’ says Mudita Chauhan, a first-year student of Biotechnology at Shoolini University,

Bilal Anwar Khan, an advocate based in Delhi & alumni of the National Law School of India University says ‘’Since Law at present says 18, we should go by that. But there should be a recognition of the right of sexuality and to make such a choice by an adolescent. If that trait is at the age of 16 or 17 let it be there.’’

Dr Deswal believes it's time India keeps up with contemporary morality.

"Fixing eighteen years as the age of consent has served to criminalise teenage sexuality. Studies have shown that children are attaining puberty earlier, they have greater access and exposure to pornographic content that fuels their curiosity, their hormones are in overdrive in growing up years, and then, there is the lure of the forbidden," she adds,

“Sex being an instinct, there is no law or societal norm that can successfully eliminate the drive. What we can do is provide them good values and guide them about safe sexual behaviour.’’
Dr Vageshwari

What Do The Courts Have To Say About It?

According to an observation by the Madras High Court, the age of consent should be brought down to 16 years, so that youngsters who engage in a consensual relationship do not come under the Protection of Children from Sexual Offences (POCSO) Act, 2012, reported Business Standard.

‘’Although the judiciary has taken a soft stand in cases where the law was invoked in consensual acts, with strict laws such as POCSO, there is little that the judiciary can do. Judges have expressed the strong need to differentiate cases where sexual acts are a result of exploratory urges among children of the same age from those which are exploitative in nature,’’ says Dr Deswal.

Global Standards

The lowest age of consent among all countries is in Nigeria at 11. There are several other countries as well like South Africa and the United Kingdom where the age is 16. In Japan, it’s 13 whereas in Bahrain it’s 21.

Dr Deswal adds, ‘’Some states in the US have Romeo and Juliet laws that penalize sexual activity only where the age gap between consenting minors is more than 3 or 4 years. This is a good example that needs to be emulated by other countries also as this would help in differentiating cases where children are exploited by sexual predators or by those in a position to influence them, from cases where children are led by the desire to explore or experiment.’’

But there are those who argue that even 18 is not good enough, the age of consent should be raised to 21.

‘’I believe the age of consent should be increased to 21. The reason is that at 18, we are not mature enough to understand the nuances of safe sex, overt consent, and respecting the comfort of our sexual partners," says Metakshara Medhi, a psychologist based in Delhi. She adds,

"So many people are raped by their romantic partners, but they aren't even aware of the trauma it leaves them with until they grow a little older. The lack of sex education in India only accentuates the problem.’’
Mitakshara Medhi, psychologist

‘’It's not about judging every 18 years old as immature, but more about the possibility. Of course, the aforementioned incidents can happen at any age, and we may still take time to realize. But there is a higher possibility that by 21, you may have a better understanding of sexual acts. You may also be able to handle situations like unwanted pregnancies a little better than if you were 18.’’ she further adds.

But Dr Deswal argues imposing restrictions is counter-productive.

‘’We are no different. There is a need to make a shift from protection based to a rights-based approach wherein the knowledge of the act, a rational understanding of the same, voluntariness to engage along with the extent of engagement, and freedom of choice are the guiding factors to determine consent," says Dr Deswal.

She points to the duty of the state towards health services to all regardless of their marital status or parental consent. This access should include the prevention and treatment of sexually transmitted diseases.

(Subscribe to FIT on Telegram)

Published: 
Stay Up On Your Health

Subscribe To Our Daily Newsletter Now.

Join over 120,000 subscribers!