[The topic has dominated nightly news programs and spurred heated
arguments on both sides. At its heart, the debate pits a growing push to
protect children and young women from sexual assault in India against the realities
of human sexuality, the lifting of taboos about casual sex and the country’s
longstanding patriarchal marriage traditions.]
 |
| A couple at a beach in Goa. Rajesh Kumar Singh/Associated Press |
NEW DELHI — Should it be illegal for
16-year-olds to have sex? What if they’re married?
That debate was reopened recently in India, as the government
prepares a new criminal amendment designed to better protect women and punish
sexual offenders. Up for discussion is lowering the age of consent from 18 to
16, which may reverse a law passed last year criminalizing all sex involving
those under 18, even if it was consensual.
The topic has dominated nightly news programs and spurred heated
arguments on both sides. At its heart, the debate pits a growing push to
protect children and young women from sexual assault in India against the realities
of human sexuality, the lifting of taboos about casual sex and the country’s
longstanding patriarchal marriage traditions.
In India, nearly one in five women are married before the age of 15, and nearly one
in every two are married before the age of 18. There has been a sharp decline
in marriages below the age of 15, but India still accounts for 40 percent of the world’s child
marriages.
Outside of marriage, there is plenty of anecdotal evidence that views on casual
or recreational sex are changing, as interaction between young men and women
increase and more Indians move away from family for work.
“It is quite normal for people to have sexual relations at 16 or
17 years of age,” Indira Jaising, India’s additional solicitor general, said in
a telephone interview. “How can we make illegal what is normal?”
By raising the age of consent last year to 18, India became one
of the most conservative countries in the world. The age of sexual consent in
Britain is 16; in France, it is 15, and in Spain, it is 13 years. In the United
States, the age ranges from 16 to 18 years, depending on the state.
India’s Ministry of Women and Child Development maintains that
those under 18 are not “physically, psychologically and emotionally capable of
handling sexual relations,” a senior ministry official told India Ink.
“Children don’t know what they getting into at that age,” said
the official, who was not authorized to speak to the media and asked not to be
identified.
This debate is a recent one in India. For decades, the age for
sexual consent under India’s penal laws was 16.
Last year, however, the government passed the Prevention of
Child Sexual Offenses Act in response to a government survey that found over 53
percent of children in India had experienced some form of sexual abuse. The law
raised the age of consent to 18 amid intense debate and opposition.
A sign of how divided government thinking was on the issue: the
original version of the bill raised the age of consent to 18, but treated 16-
to 18-year-olds differently by requiring that an exception be made for
consensual sex. This was included to reflect what the government said was an
“emerging social reality regarding awareness, understanding and exposure of
adolescents.”
The law, however, was sent to a parliamentary committee, which recommended that the consent clause be
omitted. The committee pointed to the fact that most other Indian laws,
including contract law, juvenile justice and marriage laws, draw the line at 18
years.
The Ministry of Women and Child Development also pointed to an
observation in the standing committee report that lowering the age or making an
exception for consensual sex puts the onus on young girls to prove they did not
consent in the cases of sexual assault.
“The focus would be on the victim, which would invariably lead
to revictimization of the victim,” the report said, adding that this would be
“especially problematic when dealing with children.”
In February, the government raised the age of consent to 18 in a
hurriedly passed ordinance that amended India’s criminal
laws in response to the outrage that followed a fatal gang rape in New Delhi.
In a recent note, however, Human Rights Watch criticized
the increase in age of consent, saying Indian law should take into account
“adolescents’ evolving capacity and maturity to make decisions” about sex.
“The legal framework should help adolescents deal with their
sexuality in an informed and responsible way, and not punish the same
population that it is designed to protect,” the note said.
Advocates of a lower age of consent say the law can include
safeguards to prevent child abuse. For instance, when a 16-year-old has had
sexual relations with, say, a 40-year-old, the law could presume that consent
was coerced or wrongfully obtained, because “the balance of power in the
relationship is skewed,” Ms. Jaising said.
But no law should criminalize “normal and natural sexual
relations” between two people who are in the same age group and have consented
to sex, she said.
Some courts in India have endorsed this suggestion. In May 2012,
Judge Kamini Lau said that in the absence of what she called a “close-in-age
reprieve,” the increase in the age of consent “would become regressive and
draconian as it tends to criminalize adolescent sex.
“The need is to correct this behavior and not punish,” she said.
Those working on children’s rights say they have seen this
fallout first hand, as boys having consensual sex with 16- to 18-year-old girls
are exposed to prosecution.
The National Commission for Protection of Child Rights, which is
advocating for the age of consent to be lowered to 16, says children’s homes
are full of boys who have eloped or had consensual sex with young girls whose
disapproving parents have filed cases of kidnapping and rape against the boys.
“It is being used widely as a weapon by protective parents,”
said Nina Nayak, a member of the commission. “This puts young boys, and
sometimes even girls, in a hostile legal environment.”
India’s courts too have raised similar concerns. Criticizing the
raising of the age of consent to 18, Virender Bhat, an additional sessions
judge, said last year, “Such a move would open the floodgates for prosecution
of boys for offenses of rape on the basis of complaints by girls’ parents
irrespective of whether the girl was a consenting party.”
But those who oppose a lower age of consent ask why teenagers
should be considered adult enough to make decisions about sex at 16 when they
can’t drive, vote or get married until they are 18.
“Are you trying to say that if you are sexually active, please
have premarital sex till 18 and then get married?” asked Harish Salve, a
prominent lawyer, during a television debate. “That’s a very wrong message.”
Lost in the debate over the legal age of consent, say some
observers, is whether the government should be playing a role at all in
deciding who is allowed to have intercourse. Instead, they argue, young people
should get the necessary information to decide for themselves.
“The debate is starting at the wrong end of the stick, and it
leaves everyone vulnerable,” said Naina Kapur, a lawyer and women’s rights
activist. “We have nothing resembling sex education in India to allow young
people to make informed choices.”
Judge Bhat raised the same concerns about the government’s role
in deciding a case last year. “Good virtues cannot be inculcated, and good
conscience cannot be imbibed in a child by legal provisions,” he said, adding
that, this job would be better left to parents and schoolteachers.
