INTRODUCTION
The Protection of Children from Sexual Offences Act, 2012 (Act No. 32 Of 2012) was introduced by the Government of India to protect the children from unlawful sexual assaults and activities, sexual harassment, and other connected activities. The act abides by the International norms adopted in the Convention of the Rights of the Child, 1992 to which the Government of India is a signatory. It resolves to put an end to all such sexual activities which are against the welfare of the child and empowers the state to make provisions for the betterment and redressal of children who are the victims of such assaults in a view to confirm our constitutional provisions. In any legislation affecting the child rights, the paramount consideration is given to the welfare and the best interest of the child. Under this Act, the child is defined as any person below the age of 18 years, which is considered to be the age of consent. Age of consent is defined as the age at which one is considered legally competent to consent for sexual activity. Owing to their immaturity of age and understanding, minors are considered incapable of understanding nature as well as the consequences of their actions. Thus law forbids sexual activity with or among, children below a specified age. It is not necessary whether the child has given the consent or not for any kind of sexual activity or whether he has the mental capacity to give consent for such an event, the physical capacity of the child, that is, the age of giving consent will be given primacy. Thus the act compasses the biological age of the child and is silent about the mental age considerations.
OPINION OF JURISTS ON THE AGE OF CONSENT
Justice V Parthiban in a judgment delivered by Madras High Court dated 27th April 2019 suggested some changes in the POCSO Act relating to the age of consent and the age gap. He observed that the definition of child under the act can be redefined by diminishing the age of consent from 18 to 16 years. Any consensual sex or any such act after the age of 16 between two consenting people should not be treated as heinous crimes under the POCSO Act. This was suggested because at this age children are prone to such sexual activities and eloping with their lovers due to societal and family pressures which are motivated by casteist, communal and orthodox views, and this leads to the lodging of false criminal complaints and honor killings. The judgment will help eliminate the unwarranted criminalization of consensual or romantic sexual relations.
Further, it was held that enabling the scope of fair trial… the issue of consent would have to be decided from the circumstances rather than putting the victim on the stand and asking her if she gave consent. In consensual sex, both are offenders or both are victims.
Many activists opine that consensual sex cannot be criminalized at an age when sexual exploration is common but argued against singling out the boy.
Assenting to the point that criminalization of sex at this age is not fair, former National Commission for Protection of Child Rights chairperson Dr. Shantha Sinha said: “The issue of consent has to be determined from the circumstances rather than putting the victim on the Dias and asking her if she gave consent. You have to look at the amendments in a more nuanced way and not victimize the child further through this line of questioning.”
Thus the main concern here is the way the age of consent is interpreted and the love is being perceived. The societal stigma and taboos erected by people hold no longer relevant in the present-day society.
CONCLUSION
This legislation ignited the debate over the validity of the rationale behind age consent laws and the harmfulness of adolescents.
In India, we have different ages of adulthood for different things but the standard law on the Indian Majority Act, 1875 fixes the age of attaining majority at the age of 18 years. The legislative intent behind framing this legislation was to secure the maximum interest and overall development of children so that their rights are given proper protection and grievance redressal mechanisms and to ensure that the perpetrators of such crime do not go unpunished. The act put reasonable inferences or restrictions in this manner to protect public morals, safety, public health, and International norms required to be fulfilled.
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By - Jahnvi Ahuja, 3rd year student of Mody University, Rajasthan and currently she is pursuing B.A.LL.B.
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