‘Regression is not morality’

Senior advocate Indira Jaising acting as amicus curiae, has urged the court to lower the statutory age of consent from 18 to 16 years for consensual sexual activity between teenagers, and the case is scheduled to be heard on November 12, 2025. 

The bone of contention seems to be the way POCSO has been used, misused and abused. Admittedly people make false allegations under POCSO especially to extort money from the accused or to settle personal scores in disputes. Teenagers too who become pregnant sometimes face immense family pressure to file a POCSO case against their partner, even if the relationship was consensual. What follows is an immediate arrest and trial, irreparable reputation and trauma, undermining the justice system, notwithstanding the legal and judicial response to misuse. Does this call for a relook at the POCSO Act itself or calls for reducing the consensual age to 16? Can we afford throwing the baby out with the bathwater? Why eliminate something of value when trying to get rid of something unwanted? 

The eminent lawyer argues that it is unconstitutional to criminalize consensual relationships between 16- and 18-year-olds. She has challenged the blanket criminalization under POCSO and the Bharatiya Nyaya Sanhita, stating it ignores the autonomy and maturity of adolescents who are capable of consent. While the first part of this argument may be right, there is no research available that the second part is. There also can be any number of debates for and against. Hinduism recognises ‘Kaama’ as a valid pursuit, but emphasizes that it must always be regulated by ‘dharma’ and marriage is the dharmic institution designed to regulate sexual relations and channel them toward social stability, procreation, and spiritual growth. Social harmony cannot be seen to be disturbed because consensual sex needs to be legalised at 16. Even if religion is kept out of arguments, does the call for reducing age of consent stand scrutiny?    

There are several questions that need answers. What constitutes an appropriate legal age for consent and by corollary marriage? While 18 years is the minimum age for marriage, how could sexual consent be given at 16? Are the two different? If they are different, why should it be 16 and not 12? Why not 14? Whose responsibility it will be, if children are born out of such consent? While the girl and the boy cannot legally wed at that age, what rights will the child have? While the international consensus is for 18 years, what is the basis for 16? Would the society take care of the young girls facing exploitation and lifelong harm? How are their fundamental rights to education, health, and autonomy protected by the State, which the constitution guarantees.

The age of 18 is not an arbitrary number. It is based on scientific understanding of human development. By 18, most individuals have reached both physical and cognitive maturity sufficient to make informed decisions about lifelong commitments such as marriage or sexual relationships. Neurological studies show that the prefrontal cortex, responsible for decision-making, impulse control, and judgment, continues to develop well into the early twenties. A girl under 18 often lacks the capacity to evaluate the long-term implications of marriage, consent to sexual activity under pressure, or navigate the social and emotional complexities of adult relationships. Furthermore, early sexual activity carries severe health risks, complications from pregnancy, childbirth injuries, and sexually transmitted infections. Many cases of child marriage or early sexual activity are not based on genuine consent but on coercion, manipulation, or socio-economic pressure. When girls marry early, their education is almost always interrupted or terminated. Studies by UNICEF and UNESCO consistently show that child marriage correlates with higher dropout rates, trapping them in cycles of poverty. We are a signatory to SDG’s and are committed to achieving the 2030 agenda for Sustainable Development. This would directly undermine national development goals and international commitments that call for gender equality, quality education, and the elimination of child marriage (Goal 5.3).

From a legal standpoint, reducing the marriage or consent age below 18 would contradict established international and national norms. In India, the Juvenile Justice (Care and Protection of Children) Act, 2015, is the standard for various legal and social contexts. It defines a child as a person who has not completed the age of 18 years. The Convention on the Rights of the Child (CRC), also defines a child as any person under the age of 18 and obliges states to protect children from all forms of abuse, neglect, and exploitation. Lowering the age for girls would create a legal inconsistency, implying that they are adults for marriage or sex but minors for voting, signing contracts, or pursuing higher education. Such inconsistency would weaken the integrity of the legal system and perpetuate gender inequality. Moreover, the principle of equality before the law requires that girls and boys be treated the same. Lowering the age specifically for girls would reinforce patriarchal norms and gender-based discrimination. In addition, societies that protect girls until adulthood tend to experience broader social benefits, including reduced domestic violence, healthier families, and stronger economies. From an ethical standpoint, the state has a duty to protect its most vulnerable members. Children and adolescents, particularly girls, are vulnerable to exploitation due to unequal power dynamics, limited knowledge, and social dependence. Allowing marriage or consent below 18 effectively abdicates this protective duty.

Ethical governance demands that the law not only reflect societal values but also shape them toward justice, equality, and human dignity. Upholding 18 as the threshold reinforces the idea that every girl has inherent worth and the right to grow, learn, and choose her future without premature pressure. To lower that age would be to condone a form of systemic injustice against young girls.

Instead of lowering the age of consent, the law must become more humane. The Act includes Section 22, which allows for the punishment of individuals who make false complaints with malicious intent. While this can be strengthened, judicial discretion is called for. ‘It is the mark of a primitive society to view regression as progress’ said Neale Donald Walsch an American author. Let us not be regressive with our morality. 

Disclaimer: The views expressed here are solely those of the author and do not in any way represent the views of exchange4media.com.