Age Of Consent Should Remain 18; Judicial Discretion May Be Exercised In Adolescent Relationship Cases : Centre Tells Supreme Court

In written submissions filed before the Supreme Court in a PIL regarding improving response of Indian criminal justice system to sexual offences, the Union of India has opposed any move to reduce the statutory age of consent under Indian law from 18 years.

The Centre also opposed Amicus Curiae Senior Advocate Indira Jaising's suggestion for the Court to read in an exception excluding sexual activity between consenting adolescents between the age of 16 and 18 from the scope of the POCSO Act and relevant laws, in order to decriminalise voluntary adolescent relationships.

“Introducing a legislative close-in-age exception or reducing the age of consent would irrevocably dilute the statutory presumption of vulnerability that lies at the heart of child protection law. A diluted law risks opening the floodgates to trafficking and other forms of child abuse under the garb of consent”, the Centre stated.

The Centre stated that the age of consent has been fixed at 18 years as part of a consistent and well-considered legislative framework that is rooted in constitutional mandates, international obligations, and child protection goals. The government stressed that this “bright-line rule” is rooted in the understanding that minors do not possess the legal or developmental capacity to give informed consent in matters of sexual activity, and “reflects a clear and consistent legislative intent to create an unambiguous zone of protection for minors from sexual exploitation.”

The Centre argued that this “bright-line rule” substitutes subjective assessments of consent with an objective rule aimed at protecting minors. It stated that judicial discretion may be exercised in individual cases where adolescents engage in romantic relationships, but opposed creating statutory exceptions.

“while there may arise individual cases where adolescents, out of emotional curiosity or mutual attraction, engage in romantic or physical relationships, such instances must be carefully scrutinized by courts on a case-by-case basis, using discretion and sensitivity to the facts. This judicial discretion, however, is distinct from legislative dilution. The moment the statute begins to generalize such exceptions, it weakens the bright-line protective standard that currently acts as a deterrent and shield for all children”, the Centre argued.

The Centre submitted that diluting the age of consent would weaken the protective framework of POCSO and BNS, which are designed to deter exploitation of vulnerable children, especially girls. It argued that this will open avenues for abuse, and provide legal defences to abusers acting under the guise of consensual adolescent relationships.

“Therefore, it is respectfully submitted that any suggestion to amend or dilute the age of consent by introducing legislative exceptions, would be contrary to the original legislative intent, and open the door to child abuse, coercion, and the misuse of consent in exploitative contexts… Any departure from this standard, even in the name of reform or adolescent autonomy, would amount to rolling back decades of progress in child protection law, and undermine the deterrent character of statutes like the POCSO Act, 2012 and the BNS”, the Centre has submitted.

The Centre also submitted that a majority of sexual offences against children are committed by persons in positions of trust, including family members, neighbours, teachers, and caregivers. Citing the 2007 study by the Ministry of Women and Child Development, it said that 50% of abusers were people known to the child. The submissions stated that in such situations, the child's emotional dependence and inability to resist or report the abuse invalidates any notion of consent.

“Therefore, it is submitted that the age of consent must be treated as an unassailable threshold, particularly because many offences are committed under the guise of trust, affection, familial roles, or mentorship. Any statutory dilution would legitimise manipulation, suppress disclosure, and contradict the best interests of the child as constitutionally and statutorily guaranteed”, the centre has argued.

The Centre has argued that reducing the age of consent would result in re-victimisation of the child during the justice delivery process by shifting the focus from the accused to the victim's conduct.

“diluting the statutory presumption that a person below eighteen (18) years of age is incapable of giving valid consent in 23 sexual offences gravely undermines the protective purpose of child-centric legislation. Such a shift would inevitably lead to the re-victimization of the child by shifting the focus from the unlawful conduct of the accused to the credibility of the child's version”, the Centre has stated.

The centre highlighted that the principle of “fresh start” under the Juvenile Justice Act, 2015. Section 3(xiv) and Rule 14 of the JJ Model Rules, 2016, ensure non-stigmatization and confidentiality for child offenders, and said that it reflects a progressive, child-centric approach to justice.

The centre submitted that child victims are entitled to even greater protection in law. However recognising legal consent by minors would mean that the child victim is treated with greater suspicion than the offender which is violative of Articles 14 and 21 of the Constitution.

“It is submitted that child victims of sexual offences are entitled to greater not lesser protection, and must be equally afforded legal safeguards that enable them to move forward without further trauma, social labeling, or moral burden. However, reducing the age of consent would imply legal recognition of sexual consent by minors and shift the burden of judgment and scrutiny onto the victims who cannot process or articulate informed consent or the repercussions thereof”, the Centre added.

Further, the centre argued, if the law affords child offenders a second chance, it cannot simultaneously dilute protections available to child victims by reducing the age of consent.

The Centre has argued that the Parliament consciously rejected proposals to retain a lower age of consent. The Justice Verma Committee had recommended retaining the age at 16 years under IPC Section 375, but Parliament, taking a broader view, amended the law in 2013 to set it at 18 years.

The Centre highlighted that the 240th Report of the Parliamentary Standing Committee on Human Resource Development (2011), which while reviewing the POCSO Bill, rejected the idea of recognising consent of minors. It emphasised that the maturity of a minor or their willingness to participate in sexual activity is legally immaterial.

The centre cited the 167th Report of the Parliamentary Standing Committee on Home Affairs (2012) on the Criminal Law (Amendment) Bill, which supported raising the age of consent to 18 and rejected proposals for close-in-age exemptions. The 243rd Report of the Law Commission (2023) also rejected proposals to lower the age of consent, warning that such a change would turn POCSO into a “paper law”, particularly harming efforts to combat child marriage and trafficking.

The Centre also cited India's international obligations under the UN Convention on the Rights of the Child (UNCRC) and the International Covenant on Civil and Political Rights (ICCPR), both of which treat 18 as the threshold for childhood and prescribe heightened protections for children against exploitation.

The Centre highlighted that courts have consistently upheld 18 years as the minimum age of consent and that this legal threshold has a firm constitutional and legislative foundation. It referred to various Supreme Court and High Court cases reiterating that child marriage and sexual relations with minors cannot be justified under personal laws or social customs.

Case no. – Writ Petition (Civil) No. 565 of 2012

Case Title – Nipun Saxena v. Union of India