Age of Consent in India: History, Law, and the Need for a Close-in-Age Exception

 

Age of Consent in India: History, Law, and the Need for a Close-in-Age Exception

✍️ By Suryavanshi IAS
Relevant for: GS Paper II (Governance, Polity, Constitution), GS I (Society), GS IV (Ethics), Essay Paper

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🔰 Introduction

The age of consent is a legal and moral marker—it defines the age at which an individual is considered legally competent to agree to sexual activity. In India, this age is currently set at 18 years under the Protection of Children from Sexual Offences Act (POCSO), 2012. However, this blanket age has led to criminalisation of consensual relationships among adolescents aged 16–18.

Recently, Supreme Court-appointed amicus curiae and senior advocate Indira Jaising argued that criminalising consensual sexual activity between adolescents aged 16 to 18 is legally, socially, and ethically unjustified. She called for a “close-in-age” exception to balance protection with autonomy.

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🕰️ Historical Evolution of the Age of Consent in India

📜 Colonial Era

• The age of consent was first addressed during British rule via the Age of Consent Act, 1891, which criminalised sexual intercourse with girls under 12—even within marriage.

• Controversial Case: The death of an 11-year-old girl named Phulmoni Dasi in 1889, after marital intercourse, prompted legal reform.

• Later, in 1929, the Child Marriage Restraint Act raised the age of marriage to 14.

• By 1940, the Indian Penal Code (IPC) set the age of consent at 16 years, where it remained unchanged for over 70 years.

🏛️ Post-Independence

• IPC Section 375 (Rape) included the age of consent as 16 years (raised to 18 for marital rape exceptions).

• In 2000s, rising concern over child sexual abuse and trafficking led to demand for a dedicated law.

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📘 The POCSO Act, 2012

• Enacted after recommendations from the Justice Verma Committee and rising reports of child abuse.

• Defines a child as anyone under 18.

• Makes all sexual acts with minors statutory offences, regardless of consent or mutuality.

• Section 4 & 8: Even consensual activity among 16–18-year-olds is punishable as sexual assault.

• Meant to be a protective law, but often misused in adolescent relationships.

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🚨 The Problem: Criminalising Teenage Love

Between 2012 and 2022, thousands of cases were filed under POCSO where both parties were adolescents in consensual relationships:

• In many such cases, the girl's parents file complaints due to inter-caste, inter-religious, or elopement issues.

• The boy, often a minor himself, is charged with rape, imprisoned, and stigmatised.

• Trial courts and High Courts have shown sympathy, often acquitting or recommending leniency, but the law remains inflexible.

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⚖️ Recent Legal Challenge: The Indira Jaising Submission

Filed in the Supreme Court as part of Nipun Saxena v. Union of India (2012 PIL), Indira Jaising's written submission (July 2025) makes the following points:

🗝️ Key Arguments:

1. Close-in-age exception: Both parties between 16–18 engaging in consensual sex should not face criminal prosecution.

2. Sexual maturity at 16: Cites global scientific consensus that most adolescents reach puberty and emotional maturity by 16.

3. POCSO’s misuse: The law, designed for protection, is often used vindictively by parents or to enforce caste/religion-based norms.

4. Historical continuity: The age of consent was 16 for over eight decades; its increase to 18 in 2013 was sudden and lacked empirical support.

5. Bharatiya Nyaya Sanhita (BNS): Even in the new criminal code, the age remains 18, retaining this contentious structure.

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🌏 Global Comparison: Age of Consent Laws

Country	Age of Consent	Close-in-Age Exemption
UK	16	No formal clause but prosecution rarely pursued in mutual adolescent cases
USA	16–18 (varies)	Yes, close-in-age (Romeo-Juliet laws)
Canada	16	Yes, 2–5 year age difference allowed
Germany	14	Yes, up to 21 if not exploitative
France	15	Yes, as long as consent is mutual and non-coercive

➡️ India’s age of consent at 18 is among the highest globally and lacks a legal buffer for adolescent maturity and mutuality.

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📉 Consequences of Status Quo

1. Violation of Article 14 and 21: Right to equality and personal liberty, as consensual adolescent behavior is criminalised.

2. Judicial burden: Thousands of unnecessary POCSO cases clog the courts, diverting attention from genuine abuse.

3. Stigma and trauma: Young boys face jail and social stigma, even when later acquitted.

4. Impact on girls: Teenage girls are treated as “victims” in consensual cases, even when they deny being coerced.

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💡 Suggested Reforms

1. Introduce Close-in-Age Clause
   ✅ If both parties are 16–18 and consent is proven, exemption from prosecution.
   ✅ Adopt global models like Canada or US Romeo-Juliet laws.

2. Judicial Guidelines
   ⚖️ Supreme Court can provide interpretative safeguards without amending the law immediately.

3. Amend POCSO & IPC/BNS
   🏛️ Parliament must legislatively update these acts to prevent misuse in consensual cases.

4. Sex Education in Schools
   📚 Create awareness about consent, law, and healthy relationships.

5. Training for Police & Judiciary
   🧑‍⚖️ Sensitisation to distinguish between abuse and mutual relationships.

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📘 Practice Mains Question (GS II)

Q. The POCSO Act, while protective in spirit, has raised concerns regarding consensual adolescent relationships. Should India introduce a 'close-in-age' exception? Critically evaluate.

Answer Hints:

• Start with what the POCSO Act provides

• Explain issue of 16–18-year-old consensual relationships

• Include Indira Jaising’s arguments and global practices

• Suggest legal and educational reforms

• Conclude with a balance of child protection and adolescent rights

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🎯 UPSC Relevance

Paper	Themes
GS Paper II	Judiciary, Governance, Vulnerable Sections, Rights
GS Paper I	Society, Youth, Women and Children Issues
GS Paper IV	Ethics – Law vs Moral Autonomy, Justice
Essay Paper	Topics on Rights, Law, Adolescence, Justice
Prelims	POCSO Act, Criminal Law Amendments, BNS, Nipun Saxena Case

📌 Conclusion: Law Must Reflect Social Realities

A law that criminalises adolescent love while intending to protect children is clearly misaligned with India’s changing social fabric. The time is ripe to reimagine child protection laws—not by diluting their purpose, but by ensuring they don’t unjustly punish young people for growing up.

A close-in-age exemption can bridge this gap. It’s not about encouraging teenage sex—it’s about protecting adolescents from lifelong trauma caused by outdated legal rigidity.

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📘 Prepared by Suryavanshi IAS – Helping aspirants develop layered perspectives for UPSC success.