The Indian Laws Relevant to Consent
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- Feb 27, 2023
- 5 min read
Updated: Apr 21
“Hello there! I’m here to provide you with a bit of information on the prevalent Indian Laws that are relevant to consent. I would like to remind you that suggestions on this post should not be taken as medical advice, legal advice, therapy, etc. or as a one-size-fits-all approach. Keep in mind that every individual’s journey of experiencing and navigating through stress or trauma is distinctive because you are one of a kind and no person is truly like you! Experiencing abuse in any form is NOT OKAY, but what you are experiencing as a result of abuse is valid. Please know that healing is not a formula and is not for anyone else to define for you. You do you, and you follow all that you need to follow, to help yourself. If you need additional resources or just someone to talk to, feel free to reach out to Imaara Foundation."
Written By: Shashank Ramachandran
What does sexual consent mean?
Sexual consent is the agreement to participate in sexual activity.
It is important to be honest with your partner about what you want and don’t want. Setting your boundaries and respecting other people’s boundaries is the essence of asking for consent.
All partners must agree to sex, every single time, for it to be consensual.
Sexual activity without consent amounts to sexual assault or rape (Sexual Consent, (n.d.).
FRIES?
In India, what age does a person have to reach to be able to give consent?
Age of Consent is the age that a person has to reach to give consent to sex.
A minor’s sexual consent is considered invalid, and if an adult has sex with a minor who consents to sex, it still stands as rape.
The Age of Consent in India is 18 for all genders, as per the Protection of Children from Sexual Offences Act (POCSO Act), 2012.
What is the POCSO Act in India?
India has the largest number of teenagers in the world, with more than 250 million adolescents. Though premarital sex is considered taboo in India, studies find that a large number of Indian teenagers are sexually active.
According to a 2007 study by the Ministry of Women and Child Welfare, an abysmal 53% of children said that they had faced sexual abuse, and specifically, the number of boys abused was reported to be 52.94% (Pandey, 2022) (Silence of Male Child Sexual Abuse in India, 2017).
Prior to the POCSO Act, child sexual abuse was protected under IPC 354, 375 and 377. However, these had major drawbacks. IPC 354 carried a weak penalty and didn’t protect the “modesty” of the male child. IPC 375 lacked protection of victims from sexual penetration, other than peno-vaginal penetration. IPC 377 didn't define the term “unnatural offenses.” Hence, there was a necessity for a stringent act like the POCSO Act, 2012.
The POCSO Act made rape laws more gender fluid and gave victims or survivors a lot more protection against sexual offenses in India. For example, ensuring special and more empathetic handling of child victims during the cases and also reducing ambiguity in the definition of ‘child’. It also increased the age of consent from 16 to 18 for children of all genders in India.
Why has there been a call within India for a reconsideration of age of consent?
The Karnataka High Court recently called for the Law Commission of India to reconsider the age of consent in India, due to the high number of mutually consensual sexual relationships amongst 16-18 year old's.
The higher judiciary in India has called for a reduction in the age of consent from 18 to 16 and has flagged the criminalization of consensual sex amongst adolescents over the past few years as a definite concern for the progress of the nation. The legislature in place has been discovered as being misused by parents who do not want their children to have sexual or physical freedom in their personal lives.
With the recent increase of the marriage age for women from 18 to 21, the age of consent and child marriage laws are used by parents to target inter-caste, inter-faith and all other relationships that they personally do not approve of. Research supports the claim that consensual relationships between adolescents are reported as sexual assaults. The Hindu conducted a 2013 study in Delhi and a 2015 study in Mumbai, and these studies found that girl ‘victims’ stated that the sexual intercourse they had engaged in was consensual in 33 and 23 percent respectively, of the sexual assault cases involving adolescent girls (Rukmini, 2013) (Rukmini, 2014).
The Enfold Proactive Health Trust studied 7064 POCSO judgements from 2016 to 2020 in West Bengal, Assam and Maharashtra. It was discovered that about one in four cases fell in the “romantic” category - where a relationship involving the adolescent girl was mutual. One of the lone positive takeaways from this research was that 93.8% cases resulted in acquittals and cases weren’t dismissed in only 6.2% exceptional occurrences. This low conviction rate is due to the fact that the girls involved in the cases refused to falsely testify against the accused or bravely admitted that they had been pressured to testify by their families. These families force their daughters to testify against the accused young man in question so as to put an end to the sexual relationship between them. [Enfold Proactive Health Trust, 2022).
In 2019, Madras High Court Chief Justice V Parthiban, recommended a revision of the age of consent, while overturning the conviction of a teenager. He said that a relationship amongst minors or minors with young adults was "not unnatural but a result of natural biological attraction" and recommended a revision of the age of consent (Rizwan & Khan, 2023).
Want the references for this article?
Byju’s. (n.d.). Protection Of Children from Sexual Offences Act (POCSO Act)
https://byjus.com/free-ias-prep/pocso-act/
Chandra, J. The Hindu. (2022). Parliament must examine age of consent issue, says Chief Justice of India
Enfold Proactive Health Trust. (2022). “Romantic” Cases under the POCSO Act
http://enfoldindia.org/wp-content/uploads/2022/12/Romantic-cases-under-the-POCSO-Act.pdf
National Center for Biotechnology Information. (2017). Silence of male child sexual abuse in India: Qualitative analysis of barriers for seeking psychiatric help in a multidisciplinary unit in a general hospital
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5547862/#:~:text=In%202007%2C%20Ministry%20of%20Women,of%20boys%20abused%20was%2052.94%25.
Outlook India. (2017). More Than 53% Children Face One Or More Forms Of Sexual Abuse: Centre
Planned Parenthood. (n.d.). Sexual Consent
https://www.plannedparenthood.org/learn/relationships/sexual-consent
Pandey, G. BBC. (2022). Age of consent: Why is consensual teen sex a crime in India?
https://www.bbc.com/news/world-asia-india-63953752
Rizwan, A.F., Khan, S.W. The Leaflet. (2023). The age of consent in India requires a rethink
https://theleaflet.in/the-age-of-consent-in-india-requires-a-rethink/
S, Rukmini. The Hindu. (2015). Why the FIR doesn’t tell you the whole story
S, Rukmini. The Hindu. (2014). The many shades of rape cases in Delhi
https://www.thehindu.com/data/The-many-shades-of-rape-cases-in-Delhi/article60437026.ece
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