Supreme Court of India has hailed as a victory in recognizing the rights of its citizens. It has various landmark decisions of cancelling out the nation’s disparate statutory laws to affirm that sets the legal age of consent at eighteen.
Age of consent refers to the age at which a person is considered to be capable of legally giving informed consent to sexual acts with another person. It first appeared in secular law in 1275 in England as a part of the rape law. The statute, Westminister 1, made it a misdemeanor to “ravish” a “maiden within age”, whether with or without her consent. The phrase “within age” was interpreted by Jurist Sir Edward Coke as meaning the age of marriage, which at the time was 12 years of age.
An underage girl child did have to physically struggle and resist to the limit of her capacity to convince a court of her lack of consent to as sexual act, as older females did, in other words, the age of consent made it easier to prosecute a man who sexually assaulted an underage girl.
The law forbids sexual activities with or among children, owing to their immaturity of age and understanding nature as well as consequences of their actions. The legislation defines various types of sexual offenses against children and provides penalties for such acts. Earlier under the Indian Penal Code,1860 the age of consent was pegged only for girls at 10 years. Due to Socio-economic conditions it was raised to 12 years in 1891, again in the year 1925 it was relooked and turned to 14 years, in the year 1940 it changed to 16 years and finally, in the year 2012, it came to be as 18 years.
Aiming to challenge stereotypes of female passivity and growing concern about male victimization, it made clear that laws should concern all youth-male and female-and that laws protecting from exploitation rather than ensuring their virginity. We did not have any age of consent for boys, it was only after 2012 our lawmakers woke up to the possibility of sexual abuse of minor boy child and we got gender-neutral legislation for the protection of children against the sexual offense.
One such piece of legislation passed by both the Houses of Parliament on 22nd May 2012 is The Protection of Children against Sexual Offence Act, 2012. It fixed the age of consent for both girls as well as for boys as 18 years.
In India, however, we have different ages of adulthood for doing a different thing. Who decided the age of adulthood? – Law, society, state or biological factors? One is mature enough to decide on casting his vote at 18 years as per the Citizenship Act,1955; Driving at 16 years for gearless vehicles and 18 years for motor vehicles as per the Motor Vehicles Act, 2019; Drinking at 18,21,23 or 25 (different state have fixed different age); adoption at 21 years as per Adoption and Children Act, 2002; age of working at 14 years as per The Child Labour (Prohibition and Regulation) Act,1986; the age of marriage for girls is 18 years while for boys is fixed at 21 years as per The Prohibition of Child Marriage Act, 2006.
As per Article 8 of the European Convention on Human Rights the concept of the right of private life includes the right to sexual life. But this permits reasonable interferences or restrictions necessary in society such as protection of health, morals, etc. Thus, modern states like India are justified in fixing the age of consent and this age is to be determined considering the physical mental, emotional and psychological health of children.
Since the age of consent applied in all circumstances, not just in physical assault, the law also made it impossible for an underaged female to consent to sexual activity. However, there was one exception, a man’s acts with his wife, to which marital rape is not recognized, hence here the age of consent did not apply. Behind, the inconsistency of these different laws was the lack of an obvious age to incorporate into law.
What has the Government of India done? It has persuaded Parliament to convert what is otherwise universally accepted as a heinous crime into a legitimate activity of Section 375 of The Indian penal Code, 1860.
1. The Act defines a child as any person below the age of 18 years and protects all children from offenses such as sexual assault, penetrative sexual assault, and sexual harassment.
2. The Act states that a person commits “sexual assault” if he touches the vagina, penis, anus or breast of a child with sexual intent without penetration.
India’s Supreme Court handed down a landmark judgment in Independent Thoughts v. Union of India (2017) 10 SCC 800 upbraided the government for failing to enforce the protection of child marriage act strictly. Before passing this order marital rape was not considered an offense in India’s rape law that allowed men to have sex with their wives as long they older than 15 years, as it struck down this clause in the year 2017 ruling that girls under the age of 18 would be able to charge their husband with rape.
In the changing scenario it was time for significant gender-neutral transformation where a wife can get equal rights to consent as men are given in Indian Society. Bringing much needed societal reforms, we should appreciate our Government on recognizing the rights of citizens of our Country.
This article is authored by Adv. Himadri Gotecha, (BLS LLB from KES’s Jayantilal H. Patel Law College)
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