A Supreme Court bench led by Chief Justice of India DY Chandrachud has sought the centre’s response on a Public Interest Litigation (PIL) which sought the decriminalisation of consensual sexual intercourse between minors aged 16 to 18.
Attorney Harsh Vibhore Singhal submitted the plea on his own behalf. It is intended to decriminalise the statutory rape statute, which is frequently invoked to prosecute boys from age 16 to 18 who engage in consensual relationships with girls from the same age group.
The PIL states that criminal sanctions are inappropriate against adolescents for consensual, non-exploitative sexual activity. Sex involving people below 18 years of age can be consensual, even if they are illegal as per law, that’s why enforcement of criminal law must reflect the rights and capacity of such persons to make informed decisions about engaging in consensual sex & their right to be heard in such matters, the PIL argues.
The Union Ministry of Law and Justice, the Union Ministry of Home Affairs, and other statutory organisations that include the National Commission for Women have received notifications from the highest court’s bench comprised of Chief Justice DY Chandrachud, Justice JB Padriwala and Justice Manoj Misra, asking them to submit their views on the matter.
The PIL placed a strong focus on bodily autonomy and says that teenagers between the ages of 16 and 18 are capable of giving approval. According to it, those who have reached the aforementioned age are able to evaluate their decisions and understand the associated consequences.
It stated that adolescents possess “physiological, biological, psychological and social capacities, competence to assimilate and evaluate information to understand and comprehend risks, freedom to make informed choices to convey affirmative decisions or otherwise, and have the agency and decisional/bodily autonomy to fearlessly, freely and voluntarily do what they wish to do with their bodies.”
In the PIL, advocate Singhal stated that despite having sex with girls under 18 with explicit consent, boys under 18 are regularly booked and arrested, they are denied bail and they suffer debilitating, humiliating, denigrating, and stigmatizing questions. The PIL cites several judgements where Hich Courts have granted bail to such accused minors, saying that the POCSO never intended to punish consensual sex.
It made an effort to broaden the concept of consent and passed a writ of mandamus to turn the crime of statutory rape with no offence. A court may issue a writ of mandamus to order a public entity to carry out specific tasks which in this case is to order the government to decriminalise.
It mentioned, “Pass a writ of mandamus under Article 32 or any other direction in the nature of writ and exercise its powers under 142 to decriminalise the law of statutory rape as applied to all cases of voluntary consensual sexual contact between any 16 to <18 adolescent with another similar age adolescent and with >18 adult.”
The petitioner had earlier moved the Delhi High Court with the same petition. But the court had declined to hear it saying that it does not have the authority to adjudicate on the matter. ‘We do not have the power of 142 to frame guidelines for consensual sex, and it is best that petitioner goes to Supreme Court,’ the Delhi HC had said.
It is notable that the apex court had already asked the centre to review the age of consent for sexual relationships and the use of POCSO in such cases. Chief Justice of India DY Chandrachud had urged the Indian Parliament in December 2022 to review the consent age under the 2012 Protection of Children from Sexual Offences (POCSO) Act. He highlighted how judges find it challenging to examine cases of consensual sex which involve teens due to the current definition.
He pronounced that even where consent was genuinely given, it is still illegal under the law for minors under the age of 18 to engage in sexual activity. He noted, “In my time as a judge, I have observed that this category of case poses difficult questions for judges across the spectrum. There is a growing concern surrounding this issue which must be considered by the legislature.”
Earlier, Madras High Court had also expressed similar views, advocating a review of the POCSO Act over the issue.
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 and prosecuted accordingly. On the other hand, if both the partners are minors, the boy is prosecuted under the juvenile justice act.
