Latest news with #IndiraJaising
The Hindu
3 days ago
- Politics
- The Hindu
Protection against misuse: on POCSO Act, adolescent sex
The key objective of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is the protection of children, but over the past few years, courts around the country and rights activists have called for some exemptions. Noticing a trend that adolescents, above 15 years but under 18, in voluntary relationships and having consensual sex were often being persecuted, the courts sought a review. In that backdrop, senior advocate Indira Jaising's written submission to the Supreme Court that consensual sex between teenagers aged 16-18 years must not be criminalised is a welcome move. She was appointed amicus curiae and her submissions are part of a petition filed by advocate Nipun Saxena. Her brief challenged the designation of 18 years as the age of consent. She said the only solution lies in declaring that sex between consenting adolescents between the age of 16, an almost universal age of sexual maturity, and 18, is not a form of 'abuse'. Ms. Jaising called for this exception to be read into the POCSO Act and Section 63 (sexual offences), of the Bharatiya Nyaya Sanhita (BNS). 'Such an exception would preserve the protective intent of the statute while preventing its misuse against adolescent relationships that are not exploitative in nature,' she said. In a 2023 report, the Law Commission had said that it was against changing the age of consent. It advised 'guided judicial discretion' instead, while sentencing in cases that involve children between 16 and 18 years in a voluntary, consensual relationship. Under the POCSO Act and under several provisions of the Indian Penal Code and the BNS, whoever commits a penetrative sexual assault on a child — who is anyone below 18 years — can face stringent punishment under Section 6 of the POCSO Act, Section 9 of the Prohibition of Child Marriage Act, 2006, and provisions of the IPC and BNS. A 16-year-old is considered a 'child' under Section 2(d) of the POCSO Act and hence her consent does not matter. But caveats have to be put in place so that the broad intent of the law is adhered to, as the Madras High Court suggested in 2021, in Vijayalakshmi vs State Rep. The High Court said the age difference in consensual relationships should not be more than five years to ensure that a girl of an impressionable age is not taken advantage of by an older person. Educating adolescents about the law on sexual offences and its consequences is a must too. Criminalising normal adolescent behaviour is not the way to protect against non-consensual, exploitative sexual offences.
Time of India
5 days ago
- Politics
- Time of India
‘Don't lower the age. Just stop jailing adolescent love'
With the Supreme Court weighing in, a growing chorus of experts is calling for decriminalising consensual relationships even if the age of consent is not lowered New Delhi : With the Supreme Court hearing a pivotal case over whether to lower the statutory age of consent for sexual activity from 18 to 16 years, activists and experts working with children or dealing with cases that fall in the domain of 'consensual romantic relationships' bring into focus the various complexities and challenges the situation presents in courts and beyond for 'adolescents'. At one end is a strong view that highlights the plight of boys and girls caught in such cases — putting their dignity, liberty and right to protection as teenagers at stake. On the other end are activists, who caution that attempts to change the age of consent could present a situation that could lead to misuse and enable child marriage in the garb of 'romantic relationships'. In the case before SC, for instance, senior advocate and amicus curiae Indira Jaising has urged the court to read down the current legal threshold of 18, arguing that the existing provisions criminalise consensual adolescent relationships and infringe on constitutional rights. On the other hand, the Union govt has insisted that the age must remain 18 to safeguard minors from exploitation, warning that bringing down the age could undermine the country's child protection framework. An attempt to address the complexities was also made by the Law Commission in its report on the issue in 2023. It had advised against lowering the age of consent from 18 years. It also suggested amendments in the Pocso Act to introduce guided judicial discretion by the special court in the matter of deciding on sentencing in cases involving 'tacit approval' of minors between 16 and 18 years old. by Taboola by Taboola Sponsored Links Sponsored Links Promoted Links Promoted Links You May Like Mini House for 60 sqm for Seniors with Toilet and Bath (Price May Surprise You) Pre Fabricated Homes | Search Ads Search Now Undo Swagata Raha, the founder of Enfold, a child rights NGO, has repeated her demand to decriminalise sexual relationships deemed 'consensual' — by creating an exception in Pocso for those aged between 16 and 18. 'We are not saying that the age of consent needs to be brought down to 16,' she told TOI . 'The current provision under Pocso, which sets the age of consent at 18, presents a situation where a romantic consensual relationship between adolescents is treated as a criminal act, on a par with sexual exploitation and rape. This is clearly damaging, and has long-term impact on the life and dignity of young people. To restore balance in law, this needs to change through the introduction of exceptions recognising consent of those above 16 years. ' At least one in four cases criminalised under Pocso is 'romantic' in nature, she said, citing empirical studies based on judgments. On the other hand, Bhuwan Ribhu, founder of Just Rights for Children, warned that lowering consent will open a Pandora's box, legitimising various forms of child rape as well as trafficking and child marriage. 'The law is being misunderstood and misinterpreted in the so-called consent debate,' he said, adding, 'No amendment to Pocso should be made until the current law is implemented in letter and spirit. With less than 10% conviction rate and compensation awarded in fewer than 1% of cases, the need of the hour is to implement the law before we amend it. ' Ribhu suggested that in 'genuine cases' of romantic consensual relationships, with appropriate checks and balances, it was possible to ensure protection without tinkering with consent. He felt Pocso could be amended to decriminalise situations, say, where there is a history of a romantic relationship between a boy and a girl and where the latter has been consistent in her statements before child protection agencies and courts, and where there is no gang rape or prior criminal history. However, child justice and criminal lawyer Anant Asthana feels that the issue can be addressed through amendments to Pocso — to create room for judges to exercise discretion with necessary checks to protect genuine cases of romantic relationships. Drawing attention to the lack of child-friendly policing, he highlighted the need to first equip police with a protocol to deal with such cases to protect the identity of the boy and girl. Advocate and founder of Independent Thought, Vikram Srivastava, said any attempt to alter the age of consent would open the doors to misuse and increase the risk of child marriage in the garb of consent, by the parents themselves, as seen in many states. 'Among socalled consensual relationships, in most cases we find they are entangled in a series of illegalities leading to elopement. Even for 'genuine consensual relationships', checks and procedural safeguards must be provided to filter genuine cases,' he said. Putting across the perspective of adolescents affected by such cases, Sonal Kapoor from Protsahan, which works with child survivors of abuse, said that blanket criminalisation of consensual adolescent relationships under Pocso, even when non-exploitative and rooted in mutual consent, stripped young people of voice, choice and agency. 'Lowering the age of consent risks weakening protections against coercion. But keeping it rigid results in young couples being dragged through criminal trials, humiliated and dehumanised by the same laws that are meant to protect them,' she said. 'The law must evolve. It must hold space for both protection of children and autonomy of young people.'
The Hindu
6 days ago
- Politics
- The Hindu
Consensual sex between adolocents aged 16 to 18 years must not be treated as abuse: amicus curiae to SC
Supreme Court-appointed amicus curiae and senior advocate Indira Jaising has argued that consensual sexual acts by teenagers, aged between 16 and 18, in voluntary relationships cannot be classified as 'abuse' or prosecuted as a crime. The written submissions filed by Ms. Jaising in the apex court is part of a petition filed by advocate Nipun Saxena dating back to 2012. The amicus's brief has challenged the age of pegged at 18 years by the enactment of the Protection of Children from Sexual Offences Act, 2012 (POCSO) to the extent that it works to criminalise 'consensual sexual activity between children between the age of 16-18'. 'The only solution lies in declaring that sex between consenting adolescents between the age of 16, an almost universal age of sexual maturity, and 18 is not a form of 'abuse',' Ms. Jaising's submissions said. The senior advocate, who was India's first woman Additional Solicitor General of India, said the exemption for consensual sexual acts between individuals in this age group must be read into the POCSO Act and also Section 375 (rape) of the Indian Penal Code and its corresponding provision, Section 63, of the Bharatiya Nyaya Sanhita (BNS). Definition of 'child' She submitted that the word 'child' in Section 2(d) of POCSO should not include individuals aged between 16 and 18 who engage in consensual sexual activity. 'Without reading down the statutory age of consent set at 18, it is prayed that the Supreme Court read into the impugned provisions a 'close-in-age exception', applicable when both parties to the sexual act are adolescents between the ages of 16 and 18 and the sexual act is consensual. Such an exception would preserve the protective intent of the statute while preventing its misuse against adolescent relationships that are not exploitative in nature,' Ms. Jaising reasoned in her submissions prepared with the assistance of advocates Paras Nath Singh, S. Sherwani, Rohin Bhat and R. Sinha. 'No reason to increase age for consent to 18 years' The case in question contains a challenge against the increase of age of consent from 16 yeats to 18 years through the Criminal Law (Amendment) Act, 2013. 'The age of consent was static at 16 for 80 years. No rational reason has been indicated for the increase, nor is there any data to suggest that the age of consent required any increase. The BNS has also kept a legislative scheme similar to the one in the Criminal Law Amendment Act,' the amicus curiae submitted. She argued that the increase in the age of consent violated the right to autonomy of children between the ages of 16 and 18 who have the ability to give mature consent to sexual activity, having regard to the fact that they have attained puberty giving rise to sexual awareness. 'Scientific research indicates that adolescents are attaining puberty sooner than they did several years ago and puberty as we know, is the age of awakening of sexual awareness. It is the age during which there is a natural attraction between the sexes and the development of sexual relationships of choice. Hence, to criminalise such an activity rather than addressing the issue of sex education, is arbitrary, unconstitutional and against the best interests of children as defined in law,' the submissions contended.
Hans India
6 days ago
- Politics
- Hans India
Supreme Court Urged To Lower Age Of Consent From 18 To 16 Years In India
Senior advocate Indira Jaising has petitioned the Supreme Court of India to reconsider the statutory age of consent, advocating for its reduction from 18 to 16 years. In her role as amicus curiae in the Nipun Saxena v. Union of India case, Jaising has submitted written arguments challenging the comprehensive criminalization of sexual activities involving teenagers between 16 and 18 years under both the Protection of Children from Sexual Offences Act (POCSO) 2012 and Section 375 of the Indian Penal Code. The senior lawyer contends that existing legislation inappropriately categorizes consensual romantic relationships among adolescents as abusive behavior, thereby disregarding their personal autonomy, emotional maturity, and decision-making capabilities. According to Jaising's submissions, there exists no substantial justification or scientific evidence supporting the 2013 decision to raise the consent age from 16 to 18 years, particularly since the lower age had been maintained for more than seven decades prior to this amendment. Jaising emphasizes that the Criminal Law Amendment Act of 2013 implemented this change without proper parliamentary discussion and contrary to recommendations from the Justice Verma Committee, which had suggested maintaining 16 as the appropriate age of consent. She argues that contemporary adolescents reach physical and emotional maturity earlier than previous generations and possess the capacity to engage in meaningful romantic and sexual relationships based on personal choice. Supporting her argument with empirical data, including statistics from the National Family Health Survey, Jaising notes that sexual activity among teenagers represents a normal aspect of adolescent development. She highlights alarming statistics showing a 180 percent increase in POCSO prosecutions involving minors aged 16 to 18 between 2017 and 2021, with many cases initiated by parents opposing inter-caste or inter-faith relationships, often against the wishes of the young women involved. The advocate warns that criminalizing consensual sexual activity among teenagers creates harmful consequences, forcing young couples into secretive behavior, premature marriages, or legal difficulties rather than promoting healthy communication and comprehensive sex education. To address these concerns, she proposes implementing a "close-in-age" exception that would protect consensual sexual encounters between adolescents aged 16 to 18 from prosecution under current laws. Drawing from international legal precedents and Indian constitutional jurisprudence, Jaising references the United Kingdom's Gillick decision and India's Puttaswamy privacy judgment to argue that legal capacity should not be rigidly determined by age alone. She maintains that decision-making autonomy forms a fundamental component of privacy rights and should extend to adolescents capable of making informed choices about their sexual lives. The submission also acknowledges evolving judicial attitudes in various high courts, including those in Bombay, Madras, and Meghalaya, where judges have expressed concern about the automatic prosecution of adolescent boys under POCSO provisions. These courts have recognized that not all sexual activities involving minors constitute coercive behavior and have called for legal distinctions between genuine abuse and consensual relationships. Jaising concludes her argument by urging the Supreme Court to formally declare that consensual sexual activity between adolescents aged 16 to 18 should not be classified as abuse and must be excluded from POCSO and rape law provisions. She also advocates for reviewing mandatory reporting requirements under Section 19 of POCSO, which discourage adolescents from seeking necessary medical care and support. The senior advocate frames her argument within constitutional principles, asserting that sexual autonomy represents an integral aspect of human dignity and that preventing adolescents from making informed decisions about their bodies violates fundamental rights guaranteed under Articles 14, 15, 19, and 21 of the Indian Constitution.
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Business Standard
7 days ago
- Politics
- Business Standard
'Bring down age of consent from 18 to 16 years': Plea filed in SC
The Supreme Court has been urged by amicus curiae and senior advocate Indira Jaising to read down the statutory age of consent from 18 to 16 years. Jaising, who is assisting the top court in "Nipun Saxena v. Union of India" case, has filled her written submissions challenging the blanket criminalisation of sexual activity involving adolescents aged 16 to 18 under the Protection of Children from Sexual Offences Act (POCSO), 2012 and Section 375 of IPC. She has argued the current law criminalises consensual romantic relationships among adolescents and violates their constitutional rights. Jaising said the legal framework wrongly equates consensual relationships between adolescents with abuse, ignoring their autonomy, maturity, and capacity to consent. There is no rational reason or empirical data to justify the increase in the age of consent from 16 to 18 years, Jaising submitted, noting that the age had remained at 16 for over 70 years until it was raised by the Criminal Law (Amendment) Act, 2013. She pointed out the increase came without debate and went against the Justice Verma Committee's recommendation to retain 16 as the age of consent. The amicus curiae submitted adolescents today attain puberty earlier and are capable of forming romantic and sexual relationships of their choice. Scientific and social data, including findings from the National Family Health Survey, indicate sexual activity among teenagers is not uncommon, she said. Jaising cited a 180 per cent rise in prosecutions under POCSO involving minors aged 1618 between 2017 and 2021. Most complaints are filed by parents, often against the girl's will, in cases involving inter-caste or inter-faith relationships, she said, cautioning criminalising consensual sex forces young couples into hiding, marriage or legal trouble, instead of encouraging open dialogue and education". To address this, she urged the court to read into the law a close-in-age exception, which would exempt consensual sexual acts between adolescents aged 16 to 18 from prosecution under POCSO and IPC. Criminalising sex between teenagers is arbitrary, unconstitutional, and against the best interests of children, she said. The senior lawyer referred to international norms and Indian jurisprudence to argue that legal capacity is not strictly age-bound. Quoting the UK's Gillick ruling and India's own Puttaswamy privacy judgment, she said autonomy in decision-making is central to the right to privacy and must extend to adolescents capable of informed sexual choices. The submission also pointed to trends in various high courts, including Bombay, Madras, and Meghalaya, where judges have expressed disapproval over the automatic prosecution of adolescent boys under POCSO. These courts have stressed not all sexual acts involving minors are coercive, and the law should distinguish between abuse and consensual relationships. Jaising concluded urging the top court to declare consensual sex between adolescents aged between 16 and 18 was not a form of abuse and must be excluded from the purview of POCSO and rape laws. She called for a review of the mandatory reporting obligations under Section 19 of POCSO, which deter adolescents from seeking safe medical care. Sexual autonomy is part of human dignity, she said, "and denying adolescents the ability to make informed choices about their own bodies was a violation of Articles 14, 15, 19 and 21 of the Constitution. (Only the headline and picture of this report may have been reworked by the Business Standard staff; the rest of the content is auto-generated from a syndicated feed.)
