At 18, India's legal age for consensual sex is "probably one of the highest globally"

Representation pic

It was while researching the "secret lives" of urban Indian teens for a book that Abu Dhabi-based Jyotsna Mohan Bhargava learnt that kids as young as 13 were either engaging in sexual behaviour or were sexually active. "And this wasn't a one-off case," she says, over a call. It's been nearly three years since her book, Stoned, Shamed, Depressed, got published, and she says nothing has changed. "The numbers are only adding up... A lot of children are going out on dates, experimenting, and this is perfectly normal for them." Bhargava says this has partly got to do with the access they have to information on the web. "But a lot of the knowledge is also half-baked," she confesses. "It's a generation that's in a flux and needs hand-holding." This is why Bhargava makes a case for laws that are aligned with their reality. Especially, the age of consent for sex, which was increased from 16 to 18, after India introduced the Protection of Children from Sexual Offences (POCSO) Act, 2012. "It needs a thorough re-look," she feels, "But they [our law-makers] don't want to address the elephant in the room, because the moment you address it, you also have to admit to it [that this is happening in the country]. They want to hold on to ‘parampara'."

Last week, the Bombay high court expressed concern over the age of consent under the Indian law. A single bench of Justice Bharati Dangre, while setting aside a 25-year-old's conviction and 10-year sentence for a sexual relationship with a 17-year-old, observed that the age of consent in India was "probably one of the highest globally" as most countries have set it at the range of 14 or 16. In reference to the case, the bench observed that while the said relationship was consensual, a sexual relationship with the girl would amount to rape, because she was aged 17. "Ultimately, it is for the Parliament to ponder upon the said issue," the court observed, as reported by livelaw.in, "...[while] being cognisant of the cases, which are coming before the courts, with a huge chunk, being the romantic relationship."

Researchers Amita Pitre and Lakshmi Lingam claim that there are fallouts of the age of consent being raised in the country. Those in a position of power often use it as a weapon to criminalise consensual sex among young individuals. Pics/Sayyed Sameer Abedi and M Fahim

Courts across the country are inundated with this profile of "rape cases", researchers Amita Pitre and Lakshmi Lingam tell mid-day. The duo's recently published paper, Age of Consent: Challenges and contradictions of sexual violence laws in India, looks into the repercussions of the age of consent being raised in the country.

In the paper, the researchers state that when the POCSO Act, 2012 came into being, in a first, it provided for "a comprehensive and graded definition of sexual assault against children". The Act defines a range of penetrative and non-penetrative sexual assaults and stipulates penal provisions for the same. Simultaneously, against the backdrop of the gang-rape in 2012 in New Delhi, the Criminal Law Amendment (CLA) Act, 2013, expanded the definition of rape from an offence limited to non-consensual peno-vaginal penetration to a range of penetrative and non-penetrative sexual assaults without consent. "While the POCSO, 2012 and CLA Act 2013 are distinct criminal laws, they are used in conjunction in the case of all sexual assaults faced by girls under the age of 18 years," they write. With POCSO raising the age of consent, a lot of cases now being brought into court involve minors in consensual relationships, burdening the legal system.

Priyanka Borpujari, Jyotsna Mohan Bhargava and Apurupa Vatsalya

Pitre, who works as a Gender Advisor with Oxfam International, says her PhD subject that looked at how cases of sexual assault fare in the court system, was the starting point for her to deep-dive into the subject. "As part of my research, I studied sexual assault cases in the sessions courts of Mumbai, and found that almost 30 per cent cases were of consensual sex; the police termed them as ‘technical cases'. Many of these consensual sex cases fell under the formal definition of underage sexual activity and therefore, termed as rape."

It is becoming more and more evident that those in the position of power - often, parents - are using the age of consent as a weapon to criminalise consensual sex. Lingam, former dean and professor, School of Media and Cultural Studies, Tata Institute of Social Sciences, says those in inter-caste and inter-religious relationships appear to be at greater risk. "Rape laws are being used to oppose ‘undesirable' relationships of girls and punish the boys. Boys from poorer classes are most affected, as they cannot hire a lawyer and pay for bail," says Pitre. It also has a chilling effect on access to safe abortion services and other sexual and reproductive health services because of the mandatory requirement to report to the police, she adds. Prof Lingam says, "When a young woman below 18 gets pregnant and goes to the hospital, the POCSO law mandates that the doctor alerts the police about it." Many doctors, she adds, are known to refuse seeing minor pregnant girls in order to avoid the legal hassles resulting from this reporting provision.

Apurupa Vatsalya, sexuality educator and Lead Sexual and Reproductive Health, Rights, and Justice at The YP Foundation, agrees. Having worked with adolescents and young folks in urban, rural and peri urban settings for over five years, she has noticed that "sexual activity among adolescents is happening earlier these days". "I fully understand the importance of offering protections to young people, but sometimes the law seems to take an overly protectionist stance. Healthy sexual exploration is a completely normal part of growing up, after all," she says. "One of the challenges we face is that young people can't easily access affirmative services due to the legal restrictions. It's frustrating to see them have to deal with legal consequences, especially when the enforcement of these laws can be so inconsistent. It leaves many educators and schools hesitant to provide CSE [comprehensive sexuality education] because they fear it might somehow go against the law."

Pitre says, "For girls, sex without consent was always included in the definition of rape. However, age becomes a proxy for non-consent in underage girls, which takes away their agency to tell the court, parents and society that their relationship was consensual. Such cases have increased after the age of consent was increased to 18 years. Many girls turn hostile in court, but there are others who testify to sexual assault under pressure."

For many girls, marriage has become the only way out, "as they have no home to go to, no social support and their boyfriends can be saved from a jail sentence by this public declaration of consent". "Generally, this narrows a girl's choice to move on from an early relationship, which may or may not have been her long-
term choice."

According to Prof Lingam, many countries have introduced an age gap clause of two to five years of difference between a young woman and the man. Further, a category like a non-exploitative sexual activity has also been introduced. "This means sexual activity does not have elements of prostitution or pornography, and the individuals in the relationship do not have bonds of trust, authority, and dependency. Persons like teachers, coaches, spiritual gurus, counsellors, doctors, parents, and guardians, for example, are individuals in a position of trust and authority vis a vis the young woman." Such terminologies, she says, brings in a lot of clarity and prevents arbitrary enforcement of the POCSO Act. "This framework has to be brought into our legislation."

Recently, Japan raised its age of consent for sex from 13 to 16. The change came after 116 years, says independent journalist Priyanka Borpujari, who has extensively reported on gender issues during her time in Japan, where she spent two-and-a-half years, before moving to Ireland. "Under the previous law, which was written in 1907, a person aged 13 or older had to prove in court that they had resisted sexual advances in order to be able to prove that any encounter was non-consensual, and thereby rape," Borpujari wrote in her piece in The Diplomat. "The [new] amended law calls for punishment of a person only if they are five or more years older than a minor, when the minor might be between ages 13 and 15." The law also details eight scenarios whereby a victim may not be able to fully express consent, "one of which includes abuse of power and the possible fear of consequences if the victim were to refuse sex". "India seems to be in a better position when it comes to the laws that it has in place. Also, when compared to Japan where strict hierarchies prevent people from speaking up across all classes, we have a culture of speaking up," Borpujari tells mid-day, "But age of consent is a very complex issue... I think it also boils down to understanding the dynamics in which sexual activity is taking place, especially if we are talking about two young adults." Merely lowering the age of consent of sex, without guaranteeing protection of the rights of the individuals, won't serve the purpose, she feels.

Both Pitre and Lingal feel that "legal instruments alone cannot solve complex social issues". "It has to be accompanied by access to comprehensive sexuality education, the independence and empowerment of girls, the autonomy of young people, access to sexual and reproductive health services, gender-sensitive and efficient law enforcement, and social support for young people and adolescent girls when they fall out with their families."

Vatsalya adds, "While we have Adolescent Friendly Health Clinics (AFHCs) in the country, many are defunct or are unable to provide access to confidential and non-judgmental sexual health services that cater to the specific needs of the young people of today." She states that there is a need to work on an ecosystem change by capacitating young people to engage in intergenerational dialogue with parents, educators, and policymakers about the potential harm caused by criminalisation and advocating for evidence-based approaches. "Overall, adopting a harm reduction approach that addresses risks to adolescent safety without resorting to punitive measures for consensual adolescent sexual activities has to be the way forward."