SC seeks Centre's reply on decriminalising consensual sex between 16 to 18-year-olds

The Supreme Court has sought the central government's response on a public interest litigation (PIL) seeking to decriminalise consensual sex between 16-18 year olds. The PIL has been filed by lawyer Harsh Vibire Singhal in his personal capacity. It attempts to decriminalise the law on statutory rape often invoked against adolescents above 16 years and below 18 year of age for indulging in consensual relationships. 

A bench of the Apex court comprising Chief Justice DY Chandrachud, Justice JB Padriwala and Justice Manoj Misra, has taken note of the PIL and issued notices to the Union Ministry of Law and Justice, Union Ministry of Home Affairs and other statutory bodies including National Commission for Women. 

What the PIL suggests 

The PIL, emphasising on bodily autonomy, suggests that adolescents in the age bracket of 16-18 years are capable of giving consent. The PIL suggests that adolescents in the aforementioned age can evaluate their actions and comprehend the risks involved with their decision. 

The PIL says that adolescents possess  "physiological, biological, psychological and social capacities, competence to assimilate and evaluate information to understand and comprehend risks, freedom to make informed choices to convey affirmative decisions or otherwise, and have the agency and decisional/bodily autonomy to fearlessly, freely and voluntarily do what they wish to do with their bodies."

PIL seeks direction from court 

The PIL's attempt is to expand the definition of consent and pass a writ of mandamus to decriminalise the law of statutory rape. Writ of mandamus is issued by a court to direct the public authority to perform respective duties, in this case, direct the government to decriminalise. 

The plea said, "Pass a writ of mandamus under Article 32 or any other direction in the nature of writ and exercise its powers under 142 to decriminalise the law of statutory rape as applied to all cases of voluntary consensual sexual contact between any 16 to <18 adolescent with another similar age adolescent and with >18 adult.” 

When CJI asked to review ‘Age of Consent’ 

In December 2022, CJI Chandrachud had appealed to the Parliament of India to review the age of consent under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The CJI spoke about how the current definition possesses difficulty for judges in examining cases of consensual sex involving adolescents. 

Saying that the law criminalises sexual relationship between adolescents under the age of 18 years even if consent was factually present, he highlighted, ““In my time as a judge, I have observed that this category of case poses difficult questions for judges across the spectrum. There is a growing concern surrounding this issue which must be considered by the legislature.”