Supreme Court Seeks Centre’s Response On Plea To Decriminalise Consensual Sex By 16-18 Year Olds

On Friday, a three-judge bench of the Supreme Court, comprising Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra, heard a Public Interest Litigation (PIL) challenging the vires of the statutory rape laws that criminalize consensual sex by 16-18-year-olds.

The Apex Court, taking note of the PIL, sought a response from the Centre on seeking a direction to decriminalize the law on statutory rape often invoked against 16- to 18-year-old adolescents for indulging in consensual sex. Further, the Bench has also issued notices to Union ministries of law and justice, the home affairs, and some other statutory bodies, including the National Commission for Women.

The PIL, filed by Advocate Harsh Vibhore Singhal, stated that criminal sanctions are inappropriate against adolescents for consensual, non-exploitative sexual activity. Sex involving less than 18-year-olds may be consensual in fact, if not in law. Hence, enforcement of criminal law must reflect the rights and capacity of such persons to make informed decisions about engaging in consensual sex & their right to be heard in such matters.

The petition also delved into the legislative intent of statutory rape law, which is to criminalize such consent of less than 18 years old persons who, despite consent capacities, wilt and succumb to intimidation, deception, inducement, allurement, manipulation, blackmail, misconception of fact, dominance, control, fraud etc.

It is important to note that the Petitioner had also approached the Delhi High Court via Writ Petition on the same subject matter. However, the court observed as obiter dicta that 'we do not have the power of 142 to frame guidelines for consensual sex, and it is best that petitioner goes to Supreme Court.'

In the said PIL, Petitioner has averred that despite unequivocal affirmative declarations of less than 18-year-old girls that sex is consensual, FIRs get filed, the boys are arrested, denied bail & suffer debilitating, humiliating, denigrating, and stigmatizing questions.

Moving forward, Petitioner also cited several judgments wherein the High Courts, while granting the bail to the accused, have ruled that POCSO never intended to punish consensual sex and gave bail. Even the case of X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr., Civil Appeal No 5802 of 2022, has been referred wherein the Supreme Court allowed abortions for unmarried girls saying that POCSO ‘does not prevent adolescents from engaging in consensual sexual activity.’

In view of these decisions, PIL highlighted:

“That while courts have selectively read down or read in statutory rape law with some jurists viewing with benign eyes and others taking a harsher view, law cannot discriminate between adults similarly situated with one breathing freedom while another jailed - both for consensual sex with <18. Unequal and disparate treatment based upon judicial discretion violates Art. 14, 19 and 21 besides leading to an unreliable criminal jurisprudence in such matters.”

Pertinently, the PIL has also emphasized that how this area of law is being dealt with in other jurisdictions:

“That in most jurisdictions overseas, the laws of statutory rape reprieve adults in consensual sex with minors if difference in their respective biological ages is 3 to 4 years. Called Romeo Juliet Clause, it treats consensual sex partners as Romeo and Juliet on the lines of William Shakespeare’s play “Romeo & Juliet” recognizing that there isn’t much difference in capacity, competence and maturity of a 16-17 year and a 20-21 year old and are treated as adults.”

Therefore, considering the situation's urgency, Petitioner has sought judicial intervention in the present matter and has prayed for passing guidelines similar to Vishakha (Vishaka and Ors. v. State of Rajasthan, 1997) to fill the legislative void.

“The grey area of law-a legislative vacuum - needs to be filled by guidelines on how statutory rape laws would operate by assessment of consent of 16+ to 18-year-olds before indicting the consenting adults”, PIL stated

Further, it also prayed for passing a writ of mandamus under Article 32 of the Indian Constitution or any other direction in the nature of writ and exercise its inherent powers under Article142 for directing that “until the determination by Capacity Assessment Board (CAB) regarding the (‘adult-like’) status of the sexually active 16+ to <18 adolescent, no criminal case be registered against the concerned > 18 adult under the law of statutory rape in cases where the sexually involved <18 states under 164 or 161 Cr PC that sex was voluntary, free willed and consensual absent Mens Rea”

Last year, Chief Justice of India DY Chandrachud, while addressing a public function, had expressed concerns about the age of consent under the POCSO Act and urged the Parliament to reconsider it.  The Karnataka High Court has also asked the Law Commission to address this issue. The Bombay High Court and the Madras High Court have also voiced similar concerns.

Case Title: Harsh Vibhore Singhal v. Union of India & Ors, WRIT PETITION (CIVIL) NO. 000700 OF 2023