REPORT ON SEMINAR - 06.07.

2022 on
POCSO ACT AND THE AGE OF CONSENT : A DILEMMA

Delhi Commission for Protection of Child Rights, in collaboration with University of

Delhi organized a seminar on “POCSO ACT and AGE OF CONSENT : A DILEMMA” on
06th July at Indian Law Institute, Delhi. The seminar was organized with an objective to
gather suggestions and perspectives on how to proceed in cases, wherein two adolescents
voluntarily engage in a sexual relationship without any elements of assault, exploitation, or
criminality. The seminar began at 4 P.M. with the welcome address and introduction by Mr.
Anurag Kundu, Chairperson of DCPCR, who extended gratitude to all the esteemed guests.
He stated that one must recognise that children have their own minds, hearts, and beliefs. It
is a common misperception that children are asexual beings. He further added that we must
work towards how a child can learn to express without any hesitation and we must freely
discuss the developmental issues that adolescents face and that we walk out of the seminar
as chaotic as we can with more questions than answers on this issue.

Context Setting -

Ms. Arushi Anthwal, Legal Counsel, Counsel to Secure Justice, set up the context of the
seminar.
● She explained that there is no standard definition of what adolescence is, but it can
be understood as a transitional period which is marked by substantial changes in
physical maturation, cognitive abilities and social interactions. She quoted ‘Child’ as
any person below the age of eighteen years as per the Section 2(d) of the POCSO Act,
2012.
● She mentioned that there is a significant gap between the legal age of consent and
the actual age at which a person acquires the capacity and agency to give consent.
The age of consent for sexual relations is governed by various laws such as the IPC,
PCMA, and POCSO Act, which is a gender neutral act. The statutory age of consent
defines and fixes the legal age of marriage.
● She quoted various judgements wherein the judiciary has recognized the importance
of setting an age of consent especially for adolescents. For instance, in the case of

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 Vijaylakshmi vs State, the Hon'ble Madras High Court stated that after careful
consideration of the facts, the definition of a child under Section 29(d) of the POCSO
Act can be redefined as 16 years rather than 18 years. Similarly, in the case of
Arhant Janardan Sunatkari vs The State Of Maharashtra, it was opined by
the Bombay High Court that consent of a minor is not recognised in the eyes of law.

Keynote Address -

The seminar proceeded for the keynote address was given by Hon’ble Justice A.P.
Shah, the chief guest of the evening. He began with the topic of age of consent to be a
complex subject with social & legal history.

● He shared that in the 16th century, it was considered a felony to sexually abuse a girl
below 10 years of age but lesser punishment was given when the girl was of age 11 or
12 years. The European countries used 12 years as the age of consent and it was
borrowed by North American laws. In the late 18th century other European countries
began implementing Age of Consent and it said children were different from adults.
The age of consent was set as 11 years for both boys & girls. There was inconsistency
in these laws. In Europe, the menstruation and puberty occurs between the age of 13
to 14 years differing between the individuals. Further, he mentioned about a series of
articles which were published on child prostitution in ‘Modern babylon” in 1885.
Thereafter British legislators suggested the age of consent to be 18 years, but the
government did not accept this suggestion. The global age of consent still remains at
16 years while in countries like Japan it remains at 18 years. Experts frequently
suggested that the age of consent shall be brought down. In 1860, the age of consent
was set as 10 years and child marriages were common at the age of 16 years.

● Despite India being a part of the British empire the trajectory of the age of consent
law was slightly different, borrowing from the prevailing customary practices of child
marriage in the subcontinent, the age of consent was first set as 10 in the indian
penal code in 1860. Child marriages were common in India. In the 19th century
social reformers campaigned for increasing the age limit of the marriages as these

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 marriages were not with the girl’s consent and it also affected their health and at the
same time, the hindu nationalists wanted the Britishers to steer clear of all the hindu
personal laws including child marriage. Eventually child marriage act was inducted
in 1929, it was known as Sharda Act. The age of marriage was fixed at 14 years for
girls and 18 years of boys. There was an exception to marriage by fixing marital age
at 14 years for girls. This situation remained the same even when the age of getting
married was raised to 16 years in 1940. In 1978, it was raised to 18 years. This was
the law prior to 2012.

● Justice Shah stated that marriage and sexuality are inextricably linked. Caste and
religion have strengthened society's acceptance of underage marriages. Prior to 2012,
the age of consent was 16 years old, according to Section 375 IPC. Following the
Nirbhaya incident, the POCSO Act was came into existence to address crimes
involving sexual abuse and exploitation of children, and the age of consent was
increased to 18 years, after remaining 16 years for decades.A study of sexual assault
cases indicated that in 18% to 54% of cases filed under POCSO in Delhi, Mumbai,
and Lucknow, the victims testified that they had accepted to have a relationship with
the accused.

● Justice Shah also talked about the case of Sabri, wherein the Madras High Court
suggested in April 2019 that POCSO should not be imposed in circumstances where
the two had consensual intercourse and the age was over 16 years. POSCO's goal has
been missed, and one of those engaged in establishing this law sought to make
certain revisions because the law had several problems. According to the Madras
High Court, the legislation must keep up with the evolving society. If a boy and a girl
are from the same group, there is no problem, and society welcomes child marriage;
but, if they are from different communities, the society opposes the relationship, and
the act is selective to punish the male alone, since it keeps consent in the hands of the
family.

● In the United Kingdom, the age of consent is established at 16 years. The rest of the
world rapidly followed. With few exceptions, the age of consent is uniformly 16 years
in the global arena, and India adopted its core legal framework from the English, but

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 the age of consent in India remains 18 years. We recognize POCSO's goals, yet the
measure was pushed through without any legislative debate or additional input.
Finally, Justice A.P. Shah concluded his Keynote address by stating that while
POCSO legislation was designed to help teenagers, it is now being utilized to target
adolescents.

Panel Discussion -

● Before starting the panel discussion of the distinguished dignitaries, the biggest
concern which Ms. Bharti Ali shed light upon, where are the adolescent girls
disappearing "and while reviewing the India Torture Report, she discovered
approximately 7 cases of custodial death, of which 2 cases were related to the age
group of 14-19 years, and the remaining 5 cases were of 20-25 years to which Ms.
Seema Khandekar responded that the number of instances relating to this issue has
grown. During her time at the CWC, she witnessed several examples of elopement
and romantic relationships, the most of which were between the ages of 16 and
17years. She also noted that many children flee the hospital as a result of the trauma
they experience in hospitals. Despite the RTE Act, they are even removed from
schools and sent to their villages. This is concerning as being in a romantic
relationship is natural, and she asserted that the boys charged under POCSO, who
are presented before the Juvenile Justice Board are victims as well.

● When Ms. Bharti Ali inquired about the particular age at which a child might be
regarded psychologically competent to offer consent, Dr. G. C Kavitha responded
beautifully that establishing one age as a framework to give consent is complete in
itself. She attempted to explain it further from a psychological standpoint by
underlining a majorly accepted notion that "A NO means NO and a YES means YES
and anything even slightly less than a YES... is also a No”, She also claimed that a
better grasp of this specific component is critical, citing her mentor, Mr. Shekhar P.
Sheshadri, who said, "the child may win the war but may lose the battle." During the
dialogue, Dr. G.C Kavitha attempted to bring in a perspective linked to a child's
development by insisting on "subjective perception of consent." She was concerned
with individuals being prepared or individuals being aware of the implications, and

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 by individuals, she meant ‘children’, who are not completely physically, cognitively
matured as per the basic legalities or as per the basic standards (18 years) and by
competence she meant to highlight the aspect where the individuals have enough
information or are they ready to face the consequences related to a teen pregnancy or
teen abortion or an adolescent fatherhood or are they competent enough to
understand the sexually transmitted infections that can be a part of it or are they
competent enough to bear a malnourished or an undernourished child which can
actually affect the health of the mother or the baby?

● Advocate Anant Asthana raised another critical issue, that, “Is the concept of consent
inclined towards the literary aspect? Is it like a boy and a girl asking each other, "I'm
ready, are you ready?" Is it our understanding of the age of consent? Why is there a
punishment associated with it? Why is there a consent age associated with it? When
the state wishes to control, it will use the age of consent as a tool.Why is there a
desire for control, whether by a parent, sibling, or husband?

● He mentioned that consent has become more of a zone of control by the teenagers'
family members these days. By realizing that India is a complex country with a wide
spectrum of diversity and that the issue is not about numbers or statistics, but about
the approach. He affirmed that it is unjust to the minors who are being prosecuted
for consenting conduct. He correctly stated, "How much of the data relevant to this
issue is available to the public who establish these rules and laws?" It's possible that
we'll need permission from the state to even have our sexual connection. The whole
audience's attention was drawn back to the panel discussion when he offered a very
simple, but vital, answer to all of this, and that is that the moment has come to start
working towards a dynamic rule on the age of consent that gives judges and
prosecuting authorities greater discretion. He believed that there had to be a bare
minimum. In terms of children, he would be pushing for a system in which Judges
and prosecuting authorities had that power of consideration. Everyone must place
their confidence in them.

● Ms. Bharti Ali mentioned that the system takes "consent" for a two-finger test in a
child rape case (despite the fact that the Hon'ble Supreme Court banned it years

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 ago), yet here we are, discussing the age of "sexual consent" under POCSO. How do
you interpret teenagers' subjective cognition of sexual consent? Should they be
prosecuted? According to Adv. Anant Asthana, the age of consent is a mechanism for
"controlling" teenagers' sexuality. Unfortunately, patriarchy still has a socio-legal
advantage. Teenage pregnancies (in consensual non-exploitative sexual
relationships) under POCSO never receive medical attention (MTP) and are
subjected to so much stress in the child protection system, according to a CWC ex-
chairperson Ms. Seema Khandekar, who agreed with Dr. G.C Kavitha about the
adolescents being conscious about the consequences of such sexual activities which
result from the reduction in the age of consent and much emphasis was laid upon the
aspect of “are the adolescents competent enough to understand the consequences of
the same” as there are subjective variants of consent and setting maturity as a one
age is not a solution. She stated that consent is a general word and we need to get
into the ideology of the word consent.

Question/Answer round-

The panel discussion ended with the question answer round from the
audience.
● Mr. Anant Asthana, Child Rights Lawyer stated that people think that when it is
about sex education, it is not about making the children aware, but about what is
sex, and this is an issue. There was a question from the audience that POCSO is a
gender neutral law. What about homosexual cases in POCSO? Where is the age of
consent? When under Muslim Law, it is the age of puberty, what will prevail?
Personal law or the Punitive Law? Justice A.P. Shah, answered it by stating that it
was anticipated that the Hon'ble Supreme Court would consider the topic of marital
rape, but instead, it criminalised all sexual activity between the ages of 16 and 17. The
question of whether the personal law would take precedence over the punitive law is
still up for debate. Puberty was believed to begin at 14 years old when the Reformist
movement first emerged, albeit this varies from person to person. They, therefore,
concluded that any age restriction would be arbitrary.

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 ● Another key issue made by the attendees was, the importance of harmonizing the
creation of the freedom to choose protection under the human rights framework for
all children in a diverse country like India. Adolescents' developing capacities must
be recognised. In such instances, the court should have discretion in sentence.

● Former Justice A.P. Shah stated that discretion must be given to the judges to some
extent as mandatory sentencing under POCSO to an adolescent involved in a
consensual romantic relationship is very problematic. Citing the landmark case of
Teddy Bear & Anr. v. Minister of Justice & Another, the South African case
gave a revolutionary judgment since it acknowledged adolescents as sexual beings
who, if they want, may participate in consensual sexual behavior among themselves
if the child is old enough to grasp it and shall be guided by parents to make the
proper decisions. It infringes on the child's dignity and rights and is for the
protection of children.

● Ld. Secretary, DLSA shared that the Indian Penal Code, 1860 lays down 7 years to be
completely immune from criminal activity. From 7 to 12 years, a child is culpable
only if he understands the nature of the act. After 12 years of age, a child forms a
guilty mind, so apart from discussing the age of consent, one needs to discuss if the
child is mature enough to form a guilty mind. Romantic relationships are one area of
interest and another area of interest is whether a child is mature enough to
manipulate another partner into a selective relationship driven by malicious intent.
Not only the coercion or force is required but guilty intention to sexually exploit
should also be factored in while considering mens rea in POCSO Act.
● There are 90 percent acquittals, and the attitude to this specific view is quite lenient,
and the Legislature should follow international law and emerging laws, if they are in
synchrony with all other laws.

Conclusion -

Prof. Manoj Sinha Director, ILI at the end underlined the importance of reconsidering the
law. According to him, we embraced the legislation and caused issues for all youngsters and
police officers; we live in an era of technical improvement, as a result of which cases are

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coming to light and technological advancement should be taken into account. Massive
urbanization, violence, and sexual assault are occurring at the youngest ages, and we must
consider the appropriate answer just like the 2012 Nirbhaya situation. We have numerous
actions and certain standards. The event concluded with a vote of gratitude from the
Chairperson DCPCR Mr Anurag kundu to all the esteemed panelists and guests who
attended the seminar.