Age of consent must stay 18: Centre to Supreme Court

Hindustan Times

4 days ago

The Union government on Wednesday opposed any move to lower the age of consent under the Protection of Children from Sexual Offences (POCSO) Act or introduce exceptions for adolescent relationships, telling the Supreme Court that such dilution, 'even in the name of reform or adolescent autonomy,' would dismantle the statutory shield meant to safeguard minors and risk opening the door to child abuse. The Centre firmly urged the top court to reject any proposition to amend or dilute the age of consent, stating that such a move would embolden exploitative conduct and harm the very children the law seeks to protect. (HT Photo)
In its written submissions filed before a bench of justices Vikram Nath and Sandeep Mehta, the government underscored that the current threshold of 18 must remain 'strictly and uniformly enforced' to maintain the integrity of child protection laws and uphold the best interests of minors.
'The statutory age of consent fixed at eighteen years must therefore 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,' the Centre said, adding that 'introducing a legislative close-in-age exception or reducing the age of consent would irrevocably dilute the statutory presumption of vulnerability that lies at the heart of child protection law.'
The Centre's categorical stand assumes significance amid a deluge of cases where courts are increasingly confronted with situations involving consensual relationships between adolescents, often leading to the prosecution of young boys under POCSO, even when the alleged victim does not complain of coercion or exploitation.
The Centre's response comes in the wake of concerns raised by senior advocate Indira Jaising, who, in her capacity as amicus curiae, had submitted earlier this year that mandatory reporting of all sexual activity involving minors, even consensual encounters between adolescents, was leading to the criminalisation of young people and severely compromising the health rights, privacy, and autonomy of adolescent girls.
Jaising and senior advocate Sidharth Luthra are assisting the top court in a 2012 public interest litigation filed by advocate Nipun Saxena. The matter is expected to be taken up again on Thursday.
Emphasising the deliberate and coherent statutory policy behind setting 18 as the age of consent, the Centre, however, stated: 'The legislative determination to fix the age of consent at eighteen years, and to treat all sexual activities with a person below that age as an offence irrespective of purported consent, is a product of a deliberate, well-considered and coherent statutory policy.'
This policy, the submissions said, is reflected not just in the POCSO Act but also across several legal instruments, including the Indian Penal Code, its successor the Bharatiya Nyaya Sanhita (BNS), the Indian Majority Act, the Juvenile Justice Act, and the Prohibition of Child Marriage Act -- all of which view individuals under 18 as legally incapable of full agency in decisions with lasting consequences.
'It is submitted that this policy decision is an outcome of careful and ongoing legislative discussions, considering India's cultural diversity, socio-economic conditions, and the practical challenges faced across the country,' the government said.
'It reflects a clear understanding of the vulnerability of minors, the common occurrence of coercion and manipulation in such situations, and the challenges in proving the absence of consent when minors are involved,' added the submissions, settled by additional solicitor general Aishwarya Bhati.
The government also warned that lowering the age of consent would shift focus from the conduct of the accused to the perceived willingness of the child, undermining the spirit of child-centric justice and increasing the risk of victim-blaming.
'A diluted law risks opening the floodgates to trafficking and other forms of child abuse under the garb of consent…such a shift would inevitably lead to the re-victimisation of the child by shifting the focus from the unlawful conduct of the accused to the credibility of the child's version,' it further noted.
While acknowledging that some adolescent relationships may be consensual and born out of 'emotional curiosity or mutual attraction,' the Centre maintained that these instances must be left to the courts to evaluate individually, and should not become the basis for legislative change.
'Such instances must be carefully scrutinised by courts on a case-by-case basis, using discretion and sensitivity to the facts. This judicial discretion, however, is distinct from legislative dilution. The moment the statute begins to generalise such exceptions, it weakens the bright-line protective standard that currently acts as a deterrent and shield for all children,' the submissions stated.
Referring to data cited by the Parliamentary Standing Committee on Human Resource Development in its 240th Report, the government highlighted that more than 50% of sexual offences against children are perpetrated by persons known to the victim, including family members, caregivers, and teachers, which, it said, are relationships often marked by a power imbalance that prevents children from resisting or reporting abuse.
'In such cases, presenting 'consent' as a defence only victimises the child, shifts the blame onto them, and undermines the very object of POCSO to protect children from exploitation regardless of whether they were 'willing',' the Centre said.
It further asserted that strict liability under POCSO is not punitive but protective, recognising that minors, regardless of physical maturity, are often incapable of giving informed consent, especially under social, familial, or economic pressure.
'This principle is not confined to a single enactment but is consistently reflected across multiple enactments…This formulation is a deliberate choice, grounded in the recognition that minors lack the legal and developmental capacity to give meaningful and informed consent in matters involving sexual activity,' the government submitted.
Invoking international commitments, the Centre also pointed to India's obligations under the UN Convention on the Rights of the Child (UNCRC), which defines a child as anyone under 18 and mandates States to protect them from all forms of sexual exploitation and abuse.
The POCSO Act, it added, was 'enacted in direct response to this obligation, codifying a strict liability regime wherein all sexual acts with children under 18 are criminalised, irrespective of perceived consent.'
The Centre firmly urged the top court to reject any proposition to amend or dilute the age of consent, stating that such a move would embolden exploitative conduct and harm the very children the law seeks to protect.