POCSO, however, criminalizes all sexual behaviour for individuals under the age of 18. In today’s day and age, consensual sex between minors has become an accepted norm, at least amongst teenagers. Despite that, legislation has been slow to stay in tune with the times. Hence, criminalising all sexual behaviour for individuals less than 18 years of age can be problematic. Even well-meaning laws like POCSO can have unintended negative consequences.
Apart from an outdated moral viewpoint being imposed on children, another reason why consensual sex between minors has been in a legal grey area is because of what the Indian law considers as valid consent. The Supreme Court of India, in the case of State of Madhya Pradesh v. Balu (2004) has held that consent given by a minor is not considered to be valid consent in the eyes of law. This has been reiterated in many cases of the Supreme Court and subordinate courts.
In today’s day and age, the abovementioned rationale for the judgement, or ratio decidendi, should not be extended to consensual sex between minors. Article 12 of the Universal Declaration of Human Rights (“UDHR”), of which India is a signatory, holds that everyone has the right to the protection of the law against arbitrary interference with his or her privacy. Consensual sexual acts fall under the purview of right to privacy of a human being. This has been recognized under Article 21 by the judgement of a nine-judge bench of the Supreme Court in the landmark case of Justice Puttaswamy v. Union of India (2017) .Considering consensual sexual acts as a crime violates the right to privacy of the minors.
In the case of Sabari v. Inspector of Police (2018), the Madras High Court has said in passing, or as obiter dicta, that consensual sexual activity between minors above the age of 16 years of age should not be considered to be a criminal activity. Since it was said as obiter dicta, it cannot be enforced as law, but it has persuasive value for future judicial and legislative decisions. The Court considered this a logical conclusion from a consideration of ground realities and post-modern moralities of this decade.
Many countries have 16 years or below that as the age of consent for sexual relations. Many American states, some countries in Europe, Japan, Canada, Australia, China, and Russia all fall into this category. Therefore, the rights of the child (up to 18 years of age) might be protected in accordance with the UN Convention on the Rights of the Child, but the age of consent can safely be reduced from 18 to 16.
The High Court had suggested as an obiter dicta that the definition of ‘Child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act. Such sexual assault, if it is so defined, can be tried under a new provision. This was said in passing, or as obiter dicta by the High Court, and does not construe as the law before passing of the appropriate Amendment to POCSO.
The said provision can be added as an Amendment to distinguish the cases of a teenage relationship after the age of 16, from the cases of sexual assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. This is so that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and has crossed the age of presumable infatuation or innocence.
In the famous case of “Uday v State of Karnataka ” , the Hon’ble Justice N. Santosh Hegde & B.P. Singh contended that:- “It usually happens when two young persons are madly in love and promise loses all significance, particularly when they are overcome with emotions and passion in weak moments; succumb to the temptation of having sexual relationship. The girl willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. And the appellant for the offence punishable under Section 376 IPC is set aside, and the appellant stands acquitted of the charge.”