Abstract
A three-judge bench, headed by Chief Justice of India D.Y. Chandrachud, had asked the central government about its stance on the application of “Romeo-Juliet law”. This was in response to a Public interest litigation (PIL) filed by Advocate Harsh Vibhore Singhal to decriminalize consensual sex among teenagers. This article will first look at why the current Indian law under the Protection of Children from Sexual Offences Act, 2012 (POCSO) is detrimental to the changing demographics of India. The situation thus, calls for a revitalized jurisdiction over consensual sex among teenagers. But India must take a nuanced approach, which will account for the unique socio-economic field of the country.
Introduction
POCSO was enacted in 2012. It defines under section 2(d), a child as anyone below the age of eighteen. Following this, Section 375 of the IPC was amended in 2013 and which now rules that engaging in sexual intercourse with a girl below the age of eighteen, irrespective of consent, is statutory rape. POCSO has not only increased the age of consent from sixteen to eighteen but it has also taken away the discretion of the judge in awarding punishment. Under IPC, the sentence for the offence of rape may even be given below the statutory limit of seven years after the judge has exercised enough discretion and is content with the facts of the case e.g., depending on the aggravated nature of the assault, the sentence may be reduced. This means unlike IPC, cases governed by POCSO must award the minimum statutory sentence to the perpetrator, which are ten years for penetrative sexual assault and twenty years for aggravated penetrative sexual assault. Because of this law, when teenage partners have consensual sex, the male partner can be held responsible for the offence of rape, irrespective of the consent. This amounts to the effect that no one under the age of eighteen can engage in
sex, otherwise, the act is considered rape and the partner will have to face a compulsory sentence of 10 years.
Since the introduction of POCSO in 2012, data shows cases of rape against children have increased from 0.6 in 2011 to 5.9 in 2019. Even though no direct conclusion can be drawn from this jump in numbers, it is safe to say that a contributing factor has been the increase in the age of consent. Any consensual act of sex, where either one or both the partners are above the age of sixteen and below eighteen will be considered rape. This is especially telling when there has been a protest against the increase in the age of consent because it criminalizes consensual sex and puts the partner on an unjustified trial. It also becomes a tool in the hands of the family to control the sexuality and freedom of the girl in their family. These protests called for a move to lower the age of consent back to sixteen.
Need for Change
When asked if lowering the age limit would be a viable solution, the Law Commission in its 283rd report, made its stance clear that such a move would be unfavourable. The commission said lowering the age would be prejudicial to the objective of POCSO itself. The report reiterated that children are incapable of giving consent in any scenario. Such alteration would impact the effectiveness of the law against child marriages, child prostitution, and child trafficking. Girls after the age of sixteen will be left vulnerable to these activities because the perpetrators may take the defence of consent and argue that the girl had given consent to accompany them. The report also discussed the issue of “manufactured consent”. This means that consent can be easily proved, especially through grooming or enough convincing of the girl. Cases will not be able to reach trial stage as they will be declared consensual. However, the report did recommend amending sections 4 and 8 of POCSO which stipulate the punishment for penetrative sexual assault and sexual assault respectively. It was further recommended that the court be allowed to exercise discretionary power to lower sentences in cases of consensual sex between partners where the age gap is within three years. Discretion should be exercised when the accused has a clean criminal record, maintains good behaviour
following the offence, and there are no signs of undue force, coercion, or any indications of child trafficking or the child being exploited for pornography, among other factors. This signals lenient legal provision governing consensual sex within the law, which is also popularly known as “Romeo-Juliet law”.
“Romeo-Juliet law” refers to lenient laws governing consensual sex between teenagers. These laws are conscious of the fact that teenage couples may engage in consenting sexual action as part of an intimate relationship before either or both partners have attained the age of consent. In circumstances when the couple’s age difference is relatively small and a sexual relationship is being considered rape only because the age of consent is not reached, “Romeo and Juliet law” minimizes or abolishes the penalty of the offence. Generally, the allowed age limit is between 3-4 years i.e., two partners should be within 3-4 years of age between themselves. This can be made applicable better for teenagers of 15 to 18 years old in India.
There is no such blueprint of what constitutes “Romeo and Juliet law” as each country implements them according to their public policy and morality. Especially in the Indian
context, cognizance of social factors has to be taken. We must again refer to the 283rd Law Commission report which recounted problems like child marriage, child trafficking, grooming of older adolescents, exploitation, and non-consensual rape for girls below the age of eighteen. All the impediments mentioned in the reports persist in the face of the application of “Romeo and Juliet laws”. The problem of child marriage which is rampant in India, poses a unique challenge to its implementation. Statistically, every one in four young women in India was married before they turned 18. Bringing in the “Romeo and Juliet law” is prone to misuse and will facilitate the practice of child marriage. In Assam, even today with POCSO still in force, parents arrange the marriage of their minor daughter with an older man through a notarized document claiming that the girl has fallen in love with the man and therefore they got married. Thus, the fear that such a law may create an enabling environment for misuse by coercing young girls into early marriage which will result in marital rape and other atrocities. Marrying the rape victim might be used to manufacture consent. This is especially troubling with instances of HC ordering rapist to marry their minor victim. This loophole, as also illustrated by the commission report, grants impunity to child abusers.
But at the same time, this law is curbing the sexual autonomy of teenagers. Calcutta High Court in a recent judgment of Probhat Purkait v State of West Bengal, acknowledged that the law is pernicious to the bodily autonomy and integrity of older adolescents and teenagers. It deprives the youngsters of their liberty to be in consensual relations. In a liberal and much-needed stance taken by the HC, the judgment said POCSO groups every person below eighteen irrespective of circumstance to a fault. This might be problematic in the view of evolving sexuality and the desire to explore it among older adolescents. It is known that teenagers reach sexual maturity faster, thanks to climate change, exposure to social media, readily available pornographic material, peer pressure, and so on. POCSO has failed to take into account these considerations. The act not only curbs the sexual autonomy of older adolescents who are in consensual and non-exploitative sexual relationships, but it makes them vulnerable to tedious litigation for simply exercising their autonomy. Incidentally, the act also presupposes older adolescent girls incapable of exercising agency and forever painted in the light of victims. In the recent case of Mrigraj Gautam @ Rippu vs. State Of U.P., the Allahabad HC observed that POCSO is increasingly becoming a tool of exploitation and harassment against two consensual partners. Moreover, courts have also found that maturity is not tied to a certain age. Data suggests that 11% of girls have sexual intercourse before the age of 15 and 39% before the age of 18. A survey conducted in Delhi by the Centre for Child and Law found that between 2013-15, 28% of cases filed under POCSO involved people between 16-18 years. Out of these, 90% of cases saw that the alleged perpetrator was acquitted because the victim refused to testify against their sexual partner. The fear is that such an amendment to law would encourage pre-marital sex but in the face of these numbers does it not seem that the current law is more aspirational and does not reflect the ground realities?
A case for these laws can be made on these grounds as well. Firstly, the original law strips teenagers of autonomy, which has already been discussed above. Secondly, the lack of such lenient provision actively hinders access to sexual health teenagers might seek. Despite sex being seen as a taboo, children are experimenting more and more. Even if some complications arise, teenagers cannot reach the healthcare system due to fear of police complaints and court cases. This forces them to seek unauthorized and unqualified means to their problems. Around 67% of all abortions in India were deemed unsafe with 8 deaths every day. With these figures also falls the fate of teenagers who choose to get abortions resulting from consensual sex which is illegal. Thirdly, this fire is fuelled by the lack of sex education in India. Since sex has been reserved as a matter that only adults seem to be equipped to deal with, talking and discussing about it is looked down upon. This is largely connoted by the moral, social and religious norms set in India. Due to a lack of such education, teenagers are left to make half-informed decisions and in such a position, they cannot even ask for help and guidance. Through these laws, at least some institutional walls will be brought down and people will get to talking. Moreover, due to a lack of proper knowledge, some rural people are unaware that they are violating the law. This was also the situation in the case of Probhat Purkait cited above. Lastly, many times POSCO provisions are misused as a means of extracting revenge. This exposes the teenager to an unjustified and unfair trial at the behest of the girl’s family, even though both individuals were consenting.
The Way Forward
While most courts are starting to wake up to the need to balance autonomy with the intent of the law to protect vulnerable children against coercive sexual assault and potential misuse of the law, a viable solution has to be, craving out an exception for consensual sex in the law which is dependent on the discretionary powers of the court. The need for judicial discretion cannot be overstated. Laws and legal provisions should have some scope for legal discretion; otherwise, the law can end up being unaccommodating. In POCSO cases of consensual sex between teenagers, even with de facto consent, the act is still considered rape. A person is incriminated just for exercising bodily autonomy which is all but natural. This highlights the importance of judicial discretion which can prevent such a grave miscarriage of justice. The discretion will aid justice in authentic cases while ensuring minimum misuse of the law. This also ties in with the greater idea of a more human rights-based approach.
A human rights-based approach must be adopted. This approach focuses on enabling people to be granted these freedoms and rights formally and enables the exercise of these rights. Additional measures should be taken to improve the accountability of state institutions responsible for respecting, preserving, and fulfilling rights. In the Justice Verma Committee report, a bid to revisit the age of consent was also made stating that POCSO was “aimed inter alia to protect children from sexual assault and abuse and not to criminalise consensual sex between two individuals even if they are below eighteen years of age”. The right to life under Article 21 of the Indian constitution is impeded. Teenagers are denied the liberty to develop and explore their sexuality, and this is an obstacle to their right to body and freedom. State laws and institutions cannot just be used to control and monitor adolescent relationships in the name of morality because this creates a state of fear and oppression. This renders them unable to substantially exercise their freedom. Madras High Court expressed how teenage romance and relationships are crucial to development. They help an individual explore self-identity and capacity for intimacy, and these should be supported and cared for instead of being criminalised.
A lucrative solution is to make an amendment to the law and introduce a “Romeo-Juliet” provision. This will not only legalise consensual sex between teenagers but also legalise it with adults who fall within the 2-3 years of age bracket. Most importantly, the judges should be granted discretion in deciding. Thus, a potent combination of judicial discretion and lenient law will ensure that such teenage relations are not unnecessarily penalized without prejudicing the sanctity of the law in place to protect the interest of children against harm. Conclusion We find Indian society at a juncture where it desperately needs a lenient provision to govern consensual sex among teenagers. Even though such a policy may face unique and endemic challenges, it is worth finding a solution to. Especially when it is the liberty and sexual autonomy of teenagers at risk. The endeavor should strike a balance between the independence of teenagers and the objective of protecting children from sexual exploitation as promised under POCSO. The answer to this might lie in a “Rights-based approach” as highlighted by the Calcutta HC.
Conclusion
We find Indian society at a juncture where it desperately needs a lenient provision to govern consensual sex among teenagers. Even though such a policy may face unique and endemic challenges, it is worth finding a solution to. Especially when it is the liberty and sexual autonomy of teenagers at risk. The endeavour should strike a balance between the independence of teenagers and the objective of protecting children from sexual exploitation as promised under POCSO. The answer to this might lie in a “Rights-based approach” as highlighted by the Calcutta HC.
