In late July, lawyer Indira Jaising mounted a challenge against the legal age for having sex in India – which is 18 years – in the Supreme Court, renewing conversations around the criminalisation of teen sex.
India’s legal age for having sex is . . . much higher than most European countries, or places like UK and Canada, where it is 16.
It was 10 years when India’s criminal code was enacted in 1860 and was increased to 16 in 1940 when the code was amended.
Pocso introduced the next major change, pushing the “age of consent” to 18 years in 2012. A year later, India’s criminal laws were amended to reflect this change and the country’s new criminal code, introduced in 2024, has adhered to this revised age.
But over the past decade or so, many child rights activists and even courts have taken a critical view of the country’s legal age to have sex and have called for it to be lowered to 16 years.
They say the law criminalises consensual teen relationships and is often misused by adults to control or block relationships – especially those of girls.
In April, the Madras High Court overturned the acquittal in a case where the 17-year-old victim was in a relationship with the 23-year-old accused and the two eloped after the victim’s parents arranged her marriage to another man. The accused was sentenced to 10 years imprisonment.
Ms Jaising argues that judicial discretion at sentencing isn’t enough, as the accused still faces lengthy investigations and trials.
India’s judicial system is infamously slow with millions of cases pending across all court levels. A research paper by India Child Protection Fund found that as of January 2023, nearly 250,000 Pocso cases were pending in special courts set up to try these cases.
“The process is the punishment for many,” Ms Jaising notes.
She urges the court to add a “close-in-age exception” for consensual sex between 16- and 18-year-olds in Pocso and related laws. This “close-in-age exception” would prevent consensual acts between peers in that age group from being treated as crimes.
Lawyer and child rights activist Bhuwan Ribhu warns that a blanket exception could be misused in cases of kidnapping, trafficking, and child marriage. He advocates judicial discretion paired with a justice system overhaul.
Source: Should teen sex be a crime? Indian woman lawyer mounts challenge