Blind to realities

Children continue to be vulnerable to abuse in a country where mothers are not always able to arrange effective child care while they work. Here, a toddler in Kochi is left on the roadside while the mother works as a labourer. A file photograph.-H. VIBHU

The proposed criminalisation of consensual sex between youngsters in the 16-18 age group is seen as regressive and in denial of social realities.

THE minimum age for consensual sex has been raised from 16 to 18 in the amended Protection of Children from Sexual Offences Bill, 2011, recently approved by the Union Cabinet. If approved by Parliament, this will make sexual activity with a person below 18 a criminal offence, even if it is consensual. This is among the changes suggested by a Parliamentary Standing Committee, whose recommendations have been approved in part by the Cabinet. It is not known what else has been changed in the Bill. But the criminalisation of consensual sex between youngsters aged between 16 and 18 is widely being seen as regressive and in denial of social realities.

The process of drawing up a separate Bill to deal with sexual offences against children started in 2005 with the drafting of the Offences against Children Bill. The Bill was originally drafted by women's organisations and had not criminalised consensual sexual activity in the 16-18 age group. It was approved by the National Commission for Women (NCW) and the Ministry of Women and Child Development and introduced in the Rajya Sabha on March 23, 2011. On March 28 last year, the Chairman of the Rajya Sabha referred the Bill to the Parliamentary Standing Committee on Human Resource Development.

A close look at the Standing Committee's report shows that its members had strong disagreements with the draft approved by the Ministry of Women and Child Development.

The average global age of consent is 16. Only a few countries have it as high as 18. Some countries have different ages of consent for boys and girls, taking into account, presumably, the different ages at which boys and girls attain puberty. In some cases, as in Swaziland, it is higher for girls. In Colombia, the age of consent is as low as 12 for girls and 14 for boys. It is 13 in Spain and 14 in Puerto Rico.

Rwanda, Sudan, Tanzania, Malta, the Philippines, Uganda, Gabon, Kazakhstan, El Salvador, Belarus, Burundi and Egypt are countries that have 18 as the age of consent for sexual activity. It is with these countries that India will stand if Parliament passes the amended draft legislation. Critics, however, point out that this will expose youngsters to unnecessary persecution. The effect in rural India, where economic expediencies often force people to marry early, will also not be desirable.

Why a separate Bill

There had been a debate about whether a separate law was needed to deal with sexual offences against children or if changes in the Indian Penal Code (IPC) would suffice. The Standing Committee felt a separate law was necessary. It looked at several reports, including the National Crime Records Bureau (NCRB) data, which indicated that there had been a significant increase in sexual offences against children including rape and trafficking of minor girls from 2,265 cases in 2004 to 5,694 in 2009. Of the 20,890 cases of rape reported in 2009, about 24 per cent had children as the victims. Eleven per cent of such crimes had been committed against children under 14, and 3 per cent of them were against children below 10. In contrast, the conviction rate had fallen drastically from 39.1 per cent to 18.9 per cent in the same period. The committee also took note of the fact that the existing laws did not address sexual offences against children.

The Standing Committee also looked at the Women and Child Development Ministry's report in 2007 detailing the extent of child abuse. The NCRB data for 2009 provided the clincher since rape was found to be the most common form of sexual abuse followed by trafficking of minor girls. The committee noted that the actual situation was now worse than what was described in the NCRB data and the Ministry's report. It noted: Candid admission of the Ministry about the ineffectiveness of the existing laws compounded by the prolonged process of incorporating the required provisions therein makes it amply clear that the proposed legislation is the need of the hour. The committee felt that preventive and rehabilitative aspects also needed to be considered.

So it has been a long-drawn-out process for the draft legislation to protect children from abuse to reach this stage. It is unfortunate that at this late stage some recommendations of the Standing Committee, accepted by the government, should expose the draft Bill to criticism. Indeed, it had been a struggle just to establish the need for a separate law to deal with the problem. The Department of Legal Affairs had returned the Bill, observing that the purpose of introducing a new law was not clear.

In January 2010, efforts to move the Bill got a boost when the National Commission for Protection of Child Rights (NCPCR) started pushing for a separate law. The Standing Committee studied in detail the draft drawn up by the NCPCR and the one approved by the Ministry of Women and Child Development. The committee found the NCPCR draft more comprehensive because it suggested measures to protect the child victim and proposed financial relief. But the committee objected to the explicitness with which it differentiated between the offences committed against children. The committee felt that apart from the protection of child victims, the Bill should address issues such as rehabilitation, compensation, counselling and support services for child victims. In this, it differed with the Ministry, which felt that the Bill could only deal with sexual offences against children and that the larger issue of protecting victims and witnesses was beyond its scope.

The committee felt that an exclusive law to protect children from sexual offences should address all aspects of the problem and that institutional arrangements to ensure implementation should be made fully functional.

The Ministry, on the other hand, averred that a considered decision had been taken to expand the scope of the Juvenile Justice Act to cover all other offences against children which were currently not addressed by any other law and to provide mechanisms for the care and support of children who needed it.

The committee also recommended that the NCPCR may be considered for a monitoring role under the Bill. It suggested that it was incumbent on the state to create an environment or a culture where children felt secure. A module on sex education in the school education system was desirable, it said. It recommended a change in the definition of shared household in the Bill, suggesting that the broader definition should be considered, as in the Protection of Women from Domestic Violence Act.

It is curious that while the Standing Committee upheld the need for a separate law in tune with international experience, it failed to take note of international examples while raising the age of consent to 18. Indeed, it displayed a strange conservatism in some areas. For instance, the NCPCR draft had detailed the various kinds of penetrative sexual assault on a child. The Ministry's draft was more general, while the NCPCR draft used explicit details to describe the offences. The committee agreed with the Ministry's view that it was not necessary because Indian culture and our society retain their special identity which cannot be as open as the Western world as far as the subject of the proposed legislation is concerned.

On the age of consent, the Ministry's position was bold: it held that the definition of a child and the age of consent were two different issues. The age of consent was kept at 16, consistent with Sections 375 and 377 of the IPC, and the draft provided for a uniform age of consent irrespective of gender. This was the position of women's organisations, too. The Ministry also held that the emerging social realities and the greater awareness about and exposure to sex among adolescents should not be overlooked. But those who wanted the age of consent to be raised cited the Juvenile Justice Act 2000/2006, which defines a child or a juvenile as a person who has not completed 18 years.

The Standing Committee averred that most laws took a child to mean a person below 18 and therefore this should be the age of consent. It has therefore recommended deletion of Clauses 3 and 7 of the Bill, which provided that where such penetrative sexual assault is committed against a child between 16 to 18 years of age, it shall be considered whether the consent for such an act has been obtained against the will of the child or the consent has been obtained by use of violence, force, threat to use force, intoxicants, drugs, impersonation, fraud, deceit, coercion, undue influence, threats when the child is sleeping or unconscious or where the child does not have the capacity to understand the nature of the act or to resist it. If the age of consent is raised to 18, all this becomes irrelevant because sexual contact with a person under 18 would be criminal anyway.

A real-life case

On April 30, a judge's observation in a court case showed how criminalising sex between youngsters can sometimes work against justice. Acquitting a young man facing trial for abducting a girl, Additional Sessions Judge Kamini Lau observed in a Delhi court: The legal system cannot be used to punish youngsters in love who are on the verge of attaining majority and this court cannot ruin their lives by taking a hyper-technical view, especially so when the age gap between these youngsters is within acceptable limits and does not reflect an exploitative coercive situation. The couple in question had eloped because their families were opposed to their union. A case of kidnapping a minor was then registered against the boy, which is what usually happens in such cases. (In this case, it seems that the girl was actually 18 when she eloped, so the case against the young man was without basis anyway.)

The view taken by the judge is one that several women's groups have been advocating. The principle of close-in-age relationships had also been considered in the earlier drafts of the Bill, especially the one drawn up by women's groups.

In 2010, seven women's organisations, including the All India Democratic Women's Association, welcomed the draft Criminal Law (Amendment) Bill, 2010, which, through amendments to the IPC, aimed at comprehensive legislation on crimes against women and children, but they felt that the Bill failed to take into account certain realities. The women's groups felt that a distinction needed to be made between consent and passiveness. They felt that consent needed to be understood as nothing less than unequivocal voluntary agreement by a person to engage in sexual activity. They also felt that consensual sex between young people aged between 16 and 18 should not come under the purview of statutory rape, provided the age difference was not more than five years. The rationale was that a lot of consensual sex did take place among young people and to book young men for statutory rape for engaging in consensual sex would be unjust.