Chief Justice of India DY Chandrachud has urged the parliament to revise the age of consent for sex under the Protection of Children from Sexual Offences Act (POCSO Act), saying this provision poses difficulties for judges. At present, the age of consent for sexual relationships is 18 years, and if an adult has sex with a minor even with the consent of the minor, it is considered rape.
Delivering the keynote address on a two-day national consultation on the POCSO Act organised by Supreme Court Committee on Juvenile Justice and UNICEF, CJI DY Chandrachud said that there is a growing concern around the age of consent under the Act, and it needs to be addressed.
He said this during a discussion on romantic relationships among minors. When adolescents engage in sexual activity with consent, such consent is not considered valid under POCSO, and legal actions are taken in such cases. The CJI said that when such cases reach courts, they pose difficulties for the judges, and therefore suggested that the minimum age of consent should be revisited by the parliament.
The CJI said, “You are aware that the POCSO Act criminalizes all sexual acts among those under 18 regardless of whether consent is present factually among the minors, because the presumption of the law is that there is no consent among those below 18. In my time as a judge, I have seen that this category of cases poses difficult questions for judges across the spectrum. There is a growing concern surrounding the issue which must be considered by the legislature in view of reliable research by experts in adolescent healthcare. I should leave this topic right here, as this topic is very vexed as we see in courts everyday.”
However, the CJI suggested that parliament amend the law to reduce the age of consent, instead of suggesting a judicial order to make the change in the law. Recently the central government has been vocal on the issue of the judiciary encroaching on the domain of parliament, and the CJI might have kept that in mind on the issue.
There seems to be a growing demand from the judiciary to amend the POCSO Act to reduce the age of consent for consent. The CJI’s comments came just days after Madras High Court recently said that it is ‘eagerly waiting’ for the legislature to reduce the age of consent under POCSO.
While upholding the conviction of a man accused of kidnapping and forcibly marrying a 17-year-old girl, Justice P Velmurugan of Madras High Court recently said that the court “eagerly is waiting for the amendment in the Legislature as expressed by my learned brothers.” However, the conviction was upheld by the court as the age of consent is still 18 years under the law.
The accused had contended that the relationship was consensual and that a 17-year-old can’t be considered a child. The court agreed that it is a grey area for teenagers in the age group of 16 to 18, and teenagers above 17 but below 18 may not be punished under POCSO. But the conviction was upheld by the court as the age of consent is still 18 years under the law.
The comments of the CJI and the Madras HC judge came after two different High Courts ruled that POCSO overrides Muslim personal law, and declared the marriage of minor Muslim girls invalid even though it is allowed under the personal law. In October, the Karnataka High Court said that while the marriage of Muslim girls after the age of 15 years is allowed as per Muslim Personal Law, having sex with such girls still violates the age of consent provision of POCSO. The High Court said that as POCSO is a special act, it overrides the Muslim Personal Law.
Last month, Kerala High Court delivered a similar verdict, saying that sex with minors is illegal under POCSO Act even if it is with a minor Muslim girl legally married. Justice Bechu Kurain Thomas said that if one of the partners in the marriage is a minor, offences under POCSO Act will apply, and the validity of the marriage would not be considered in such cases. The judge said that he can’t agree that an offence under the POCSO Act will not get attracted against a Muslim marrying a minor.
Like the Karnataka HC, the Kerala HC also said that although Muslims are allowed to marry minor girls under The Muslim Personal Law (Shariat) Application Act, as the accused was arrested under POCSO, the special stature will prevail over the sharia law. Moreover, the court also said it is questionable whether the Muslim Personal Law overrides the Prohibition of Child Marriage Act, 2006. According to this act, the marriage of men below 21 years of age and women below 18 years of age is illegal.
