The long-standing debate about the autonomy of adolescents to take part in consensual sexual relations has sparked once again with the pronouncement of judgment by the Bombay High Court in the case of Ashik Ramjan Ansari Vs. The State of Maharashtra. Finding its place in the groove of decisions that favored non-criminalization of sexual activity when a minor has sufficient knowledge over the act in which he/she/they are taking part and is equipped enough to understand the consequences of his/her/their sexual act, the Bombay High Court has set free the accused, placing strong reliance on the shreds of evidence that are indicating that the individuals were involved in consensual sexual activity. In one of the most progressive judgments one can come across, several references were made to the sexual autonomy of adolescents and the need for distinction between the ‘age of marriage’ and ‘age of consent’.
In an elegantly poised judgment, Justice Bharati Dangre has addressed the ‘gray area’ that is created because of the presumption that is existing under the law in place. Whilst the presumption of minors being incapable of giving valid consent protects the exploitation that can result, at the same time it resulted in the creation of a gray area where it is leading to criminalization of consensual adolescent relationships. Whilst two of the important concerns that are surrounding adolescents getting engaged in sexual intercourse are: firstly, the adolescent’s body is not equipped enough to with-stand penetration and secondly, because of the budding self-autonomy there is always a risk of them not being able to give informed consent. However, both of these can be challenged on biological and moral grounds. Owing to concerns of exploitation Indian law is crafted in such a manner that it somewhere is seriously impairing adolescent’s sexual autonomy as it has become a common practice of convicting individuals despite being involved in a consensual sexual relationship.
Sexual autonomy includes both the right to pursue desired sexual behavior and the right to be shielded from impermissible sexual aggression, as was correctly noted in the judgment. The freedom to partake in consensual sexual activity and the right to privacy represents the right to personal growth. Turning a blind eye to the right of development and sexual autonomy, criminalizing consensual acts is proving to be detrimental, with numerous cases being reported of individuals being put behind bars merely for being involved in a consensual act. The dire situation that is in existence for the protection of the sexual autonomy of adolescents can be exemplified by the fact that there is no general or special law differentiating between ‘violent sexual behavior’ and ‘consensual sexual behavior that does not qualify as assault’.
Despite acceding to the United Nations Convention on the Rights of the Child (UNCRC) way back in the year 1993, historically, India has not been actively implementing laws for the protection of children. The general criminal law in the Indian Penal Code 1860 does not categorically provide for offenses against children. A central law to prosecute sexual assaults against children under the age of 18 in all of India was first passed in 2012 with the enactment of the Protection of Children Against Sexual Offences Act 2012 (POCSO).
A rather apparent paradox in Indian law is that under IPC a child who is above the age of 12 years is deemed to have sufficient knowledge over the acts that they have committed and consequently can be penalized, but under POCSO a child under the age of 18 years is considered to be unfit to give/their consent because they will not be in a position to understand the consequences of the act. One fitting solution that can reduce unwanted convictions is to assess the child's maturity level and decide whether they are old enough to understand the nature and consequences of their actions.
The major premise behind the criminalization of adolescent relations is that such a relationship victimizes the girl child, while the fact remains that any minor who willingly with passion and love takes part in intercourse, doesn't consider herself as a victim. One fact that legislators, or for that matter, any individual can’t run away from is that adolescents do have a sexual life and this should not be an astonishing fact to come across, since it is common knowledge that adolescence is the time when rapid physical development happens that consequently leads to the development of sexual maturity.
Despite owing to poor history and stringent laws for adolescent sexual autonomy, what has been refreshing to see is the stands taken by different high courts on different occasions. One such instance is the case of Yunusbhai Usmanbhai Shaikh Vs. The State of Gujarat where the Gujarat High Court has acquitted the accused taking cognizance of the consent given by the victim. It is a case where the prosecutrix, the complainant's daughter, married the accused at the age of 16, the accused was charged with kidnapping and forcing a lady into marriage. Here, the complainant acknowledged having traveled with the accused voluntarily. By relying on the 16 year old victim's consent, the court acquitted the accused.
Another instance of decriminalization of adolescent relations can be seen in the case of Raghunath S/O Bondraji Beldar vs. State of Maharashtra where the accused was charged with committing rape, but at a later stage, it was changed to outraging a woman's modesty. Despite the victim being a minor whose age at the time of the commission of the alleged offense was 15 years and 8 months, the court has set free the accused because the victim was a consenting party placing stern reliance on the evidence, especially in light of the medical evidence showing that there was no resistance at all and the victim was older than 12 at the time of the offense; therefore, he could not have been convicted of the offense under Section 354 of the IPC, unless for exceptional circumstances. It is to be borne in mind that Section 90 of the Indian Penal Code specifies the concept of consent and that this case had categorical mentions of the same. According to the law, permission is not valid if it is provided by a child under the age of 12 years. As that was not the case here, the court determined that she was a consenting person and therefore, there was no crime committed. From this instance, it can be concluded that the court took the victim's ability to consent into account in addition to the victim's age. The court believed that a victim who is 15 years old is mature enough to understand the nature and effects of the act.
Amidst the stringent laws and a poor history concerning protecting the autonomy of adolescent relationships, judgments like these are sparking those much-needed discussions for the protection of child rights and their sexual autonomy. While there are no second thoughts when the intercourse is non-consensual, when it comes to consensual adolescent relations, there is a dire need of dealing with them with utmost care and not in the way they are being dealt with at the moment. The way forward should be sensitization and making people aware, rather than strict prohibition.
Authored by: Kantabathina Jaswanth Reddy
Damodaram Sanjivayya National Law University
