Amicus Curiae Indira Jaising suggests lowering age of consent for sex to 16; government opposes

Senior Advocate Indira Jaising has urged the Supreme Court to read down the strict age of consent under the Protection of Children from Sexual Offences (POCSO) Act, 2012 from 18 to 16. .Acting as Amicus Curiae in Nipun Saxena & Anr. vs. Union of India - an ongoing case dealing with reforms to safeguard the safety and dignity of women, Jaising suggested that the age of consent should be lowered from 18 to 16 to prevent misuse of POCSO provisions against young persons.The law in its present form disproportionately penalises adolescents in consensual sexual relationships, she said in her written arguments before the top court..The case arose from conflicting High Court decisions on whether consensual sexual relationships between adolescents particularly where both parties are between 16 and 18, must attract the full rigour of POCSO. The issue was flagged following a slew of cases where the complainant herself admitted to consensual involvement, yet the boy came to be charged under POCSO due to the statutory bar on consent below 18..Jaising’s submissions traced the historical development of the age of consent in Indian law. Before POCSO came into force in 2012, the Indian Penal Code (IPC) defined the age of consent as 16. POCSO raised this to 18 for all purposes, creating a complete bar on recognising consent under that age. According to Jaising, this shift was not backed by any empirical study or scientific rationale and was instead driven by an overly paternalistic desire to protect adolescent girls..Jaising further stated that reducing the age of sexual consent from 16 to 18 would harmonise the POCSO Act with 'ground realities' and evolving adolescent behaviour.Her submissions emphasised that adolescents aged 16 to 18 are entitled to the right to privacy, dignity and decisional autonomy in matters of sexual relationships.She also referred to various reports, including the Justice Verma Committee Report and the Committee on Reforms of Criminal Laws, to submit that several expert bodies had already recommended reducing the age of consent to 16.She clarified that lowering the age of consent would not decriminalise exploitative conduct, since other provisions of law including those relating to rape and aggravated assault would continue to apply..Jaising also proposed that a presumption of consent could be introduced for adolescents aged 16 and above, subject to rebuttal based on factors such as power imbalance, coercion or deceit. This would strike a balance between protecting children from exploitation and not penalising consensual relationships, she said..Additional Solicitor General Aishwarya Bhati, representing the Union of India, opposed Jaising's submissions, stating that such a move would create room for abuse and exploitation, especially by older persons against adolescent girls.The Union government submitted that the current framework of the POCSO Act is based on the understanding that persons under 18 are vulnerable and require special protection. The government said there is no need to alter this legislative intent..The Union also cited data from the National Crime Records Bureau (NCRB) to argue that a large number of cases under the POCSO Act relate to assault and abuse by adults, and that retaining 18 as the threshold is necessary to ensure robust protection.It pointed out that the law already has built-in safeguards such as provisions allowing courts to take a lenient view in sentencing where it is found that the relationship was consensual and not exploitative. Therefore, judicial interference in the age of consent is unwarranted..With the written submissions being filed by both parties, the Court will resume hearing the matter on August 20.