The Supreme Court is currently reviewing petitions concerning the age of consent in India, with amicus curiae Indira Jaising advocating for lowering it from 18 to 16 years, arguing that adolescents are capable of making informed decisions. Jaising, assisting the court in the "Nipun Saxena v. Union of India" case, has submitted written arguments challenging the blanket criminalization of sexual activity between adolescents aged 16 to 18 under the Protection of Children from Sexual Offences Act (POCSO), 2012, and Section 375 of the Indian Penal Code (IPC). She contends that the current law wrongly equates consensual relationships among adolescents with abuse, thereby ignoring their autonomy, maturity, and capacity to consent.
Jaising argues that there is no rational reason or empirical data to justify increasing the age of consent from 16 to 18 years, noting that it remained at 16 for over 70 years until the Criminal Law (Amendment) Act of 2013 raised it. She urges the court to declare that consensual sex between adolescents aged 16 to 18 is not a form of abuse and should be excluded from the purview of POCSO and rape laws. Furthermore, she calls for a review of the mandatory reporting obligations under Section 19 of POCSO, which she believes deters adolescents from seeking safe medical care. Jaising asserts that sexual autonomy is part of human dignity and denying adolescents the ability to make informed choices about their own bodies violates Articles 14, 15, 19, and 21 of the Constitution.
Conversely, the Centre has defended the statutory age of consent of 18 years, stating that the decision was a deliberate, well-considered, and coherent policy choice. The government warns that lowering the threshold would dilute child protection, potentially opening the floodgates to trafficking and other forms of child abuse under the guise of consent. It argues that reducing the age of consent or introducing a legislative close-in-age exception would irrevocably dilute the statutory presumption of vulnerability at the heart of child protection law. The Centre maintains that judicial discretion should remain on a case-by-case basis and not be read into the statute as a general exception or diluted standard. They further argue that any move to reduce the age could complicate prosecutions, potentially shifting the legal focus to the minor's willingness in sexual encounters, increasing the prospects of victim-blaming and misuse of consent as a legal defense. The government insists that India's complex cultural landscape and the continuing vulnerabilities faced by children require robust statutory protection.
The Supreme Court has scheduled a continuous hearing on the matter for November 12. The court has stated that it would prefer to hear the matter in "continuity" rather than in a "piecemeal" manner.
