The reforms in the rape laws have been seldom and are a reactionary phenomenon in India. The Indian Penal Code which is looked by the society and police as an instrument for safety of women from sexual assaults including Rape was enacted in 1860. Its counterpart procedural law was enacted in 1973, an improvement over the 1898 code. The major accusation against criminal law is that it has failed to keep the pace with the advancement in society as well as technology. The two major cases that stirred the reforms in law pertaining to sexual assault are Mathura Case of 1978 (Amendments made in 1983) and Nirbhaya Case of 2012 (Amendments made in 2013). The stringent provisions were the knee jerk reactions by making the definition of rape and other sexual assaults broader and punishments more deterrent.

In India, the law enacted for the protection of children from offences of sexual assault, sexual harassment and pornography are the ‘Protection of Children from Sexual Offences Act, 2012’ (POCSO). Section 2(d) of the said Act defines any person below the age of eighteen years as a child and thus, any sexual activity with him/her would be a punishable offence under this Act. The effect of the enforcement of the POCSO Act in 2012 was that it raised the ‘age of consent’ from 16 years as mentioned in the Indian Penal Code to 18 years of age. In other words, if any individual indulges in any sexual activity with a minor, even if it is consensual or mutual, it will be considered an offence and the offender shall be punished. This is also called statutory rape.

The principal rationale behind the Act is to prevent children from being exploited by older people who might take advantage of their vulnerability and lower cognitive capacity. It adopted a protectionist approach under the assumption that a uniform age of consent would be in accordance with the UN Convention on the Rights of the Child, 1989.

The Act defines in detail the various offences against which protection is provided to the child and also prescribes punishment in case the offence is committed. Section 6 provides for a minimum punishment of ten years imprisonment which may even extend to life imprisonment in case of aggravated penetrative sexual assault. Thus, it disregards the exception provided in case of marriage as provided in Section 375 of the Indian Penal Code. Section 8 of the POCSO Act prescribes the punishment for sexual assault against the child, up to five years and Section 12 of the POCSO Act specifies the punishment for sexual harassment up to three years. Also, Section 18 of the Act provides for punishment for the attempt of any offence punishable under the POCSO Act. Now after the proposed amendment of 2019 are introduced, the punishment of the death penalty for certain sexual assaults is also contemplated.

However, a significant issue that arises is that consensual sex between teenagers, especially when they are 16-18 years of age is also penalized by the law under the Act. For instance, in a situation, where the female is 16 years of age and the male is 18 years of age and they are indulging in consensual sexual activities, both the male and the female can be considered victims under the POCSO Act and can be prosecuted in accordance with the provisions of the Juvenile Justice Act, 2015. Also, in the same situation if the male is 19 years of age, he will be tried for committing rape and also in some cases, for the offence of kidnapping under Section 363 of the Indian Penal Code.

It is a trend these days amongst the teenagers to be in a relationship and have consensual sexual relationships. However, most of the times parents do not approve such relationships. Since, sex before marriage is still considered as a stigma in many societies, in order to protect the image of the family, parents (or girl under parents pressure) files a case against such boy for the offence of kidnapping, rape and sexual assault.

Thus, this leads to a circumstance where the male is labelled as a criminal despite consensually having established sexual intimacy and would be kept with serial rapists, child pornographers and paedophiles. The question to ponder upon then is whether penalizing a teenager, now to the extent of the death penalty, in such a situation would serve the purpose of the law and be in consonance with the legislative intent.

Moreover, in such type of cases, most of the times, the victim shows their unwillingness to register the case. However, under the influence and force of parents and relatives, they approach the police and cases are then registered under the section of 376 read with section 363 of Indian Penal Code, 1860 against the accused and under POCSO Act under relevant circumstances. In the vast majority of cases, during the course of the investigation and after filing the charge sheet, the victim becomes hostile before the commencement of trial and the entire case fizzles out.

In order to avoid such nature of criminalisation Texas (Unites States), rape laws provide a ‘Romeo & Juliet exception’. Texas Penal Code 22.021 states, “…that anyone between the ages of 14 and 17 can legally give consent with someone within three years of their age, so long as the other party is at least 14 and gives his or her consent.”[1]

This code means that an 18-year-old and 15-year-old would be able to have consensual sex. However, a 14-year-old would not be able to have sex with anyone under the age of 14, even with the three-year age gap. Anyone who is 13-years-old cannot consent to sexual activity under any circumstances. While the Romeo and Juliet laws exist to prevent unfair prosecutions of young adults, teenagers can still commit statutory rape if they have sex with someone outside of their acceptable age range, such as a 17- and 13-year-old. Likewise, any adult who isn’t within three years of a minor partner can also commit statutory rape, such as a 20- and 16-year-old.[2]

Thus, it is imperative for India to determine a uniform and accurate age of consent such that a balance is created between the rights of the victim and the accused and innocent teenagers aren’t punished. It would serve the best interests of the country also, as then the limited resources can be invested in more serious and significant cases.

[1] Romeo & The Juliet Law, Https://Www.Davidbreston.Com/Romeo-And-Juliet-Law/

[2] Romeo & The Juliet Law, https://www.davidbreston.com/romeo-and-juliet-law/

By Chirag Balyan

Chirag Balyan is an Assistant Professor of Law, Maharashtra National Law University Mumbai.

The ideas expressed herein were initially discussed and deliberated at National Consultation on Review of Reforms related to Sexual Offences organised by KEM Hospital and MNLU Mumbai at IIT Bombay in February 2017