Moving Beyond ‘No Means No’ To ‘Yes Means Yes’
The contrast between the slogan “No Means No,” popularized by Pink (released on September 16, 2016), and the Protection of Children from Sexual Offences Act (POCSO, enacted on December 14, 2012) lies fundamentally in the question of capacity to consent. Pink champions the principle that any person’s refusal of sexual advances must be respected, thereby foregrounding affirmative consent as the cornerstone of lawful intercourse. Under POCSO, however, the law takes a per se approach: any sexual activity with a person under eighteen years of age is an offence, regardless of whether the minor purportedly agreed to the act.
Going by the legislative framework, it is being reflected that individuals who are under eighteen years of age, the lacks assumes that they lack the maturity to make any informed decision and any action they make take in relation to sexual activity will lack autonomy from their side. The corollary is that “consent” given by minor is totally insignificant and has got no relevancy in the law. Under Section 4 of the Protection of Children from Sexual Offences Act, 2012, any penetrative sexual intercourse attracts strict liability offence. Any sexual activity with a person under eighteen years of age is automatically deemed criminal, irrespective of the child’s apparent consent. The law dispenses with the requirement to establish mens rea, it totally rests on the premise that minors, by virtue of their developmental immaturity, cannot give legally valid consent. In effect, even a minor’s “yes” is rendered legally ineffective, converting what might otherwise appear consensual into an offence designed to safeguard children from exploitation and abuse.
It is being argued that absolute barring teenagers below 18 years of age unintentionally criminalises consensual relationships between peers who are close in age. This also undermines the very agency the “No Means No” since “Yes Means Yes” does not serve any purpose under POCSO Act. The western jurisdiction of the world follows “Romeo and Juliet” exceptions or lowering the age threshold for consensual activity between minors unlike POCSO’s universal protection model which offers no carve-out which leads to very harsh legal consequences for youthful experimentations which at times involve limited age differences.
A study by the NGO Enfold India across Assam, Maharashtra, and West Bengal found that approximately 24.3 percent of all POCSO complaints involved consensual “romantic” relationships. Moreover, in nearly 80 percent of these cases, it was the girl’s parents who filed the complaint—leading to rape charges against the young man, while the girl was automatically classified as the victim. The Indian courts at times have quashed the cases against the man considering their relationship was consensual. Societal perception also make the situation worse as society views boys as a willing participant and girls incapable of giving consent. Philosophically, the primary purpose of bringing this statute was the notion that a child is incapable of giving free consent and is unable to understand the consequences of their actions. The Indian judiciary very often has taken a contrary view. The High Court of Bombay has held that even a 14 years old girl is having ‘sufficient knowledge’ and ‘capacity’ to know the consequences of their action. (Vijay Chand Dubey vs State of Maharashtra and Anr) This view was also supported by the Supreme Court stating the age of 16-18 is the ‘age of understanding’ as to what was right and wrong for her’. (Tilku Alias Tilak Singh v. The State of Uttarakhand). Another controversy surrounding POCSO is its conflict with Juvenile Justice Act. The JJ Act provisions for treating a teenage of 16 years as an adult based on his mental capacity and the nature of crime and at the very same time POCSO believes in the notion that a child of 16 years is incapable of giving consent as an adult can do. This shows the inclination of the state towards punishment by treating a teenager to be an adult whereas the same consent of same teenager is considered totally meaningless which it comes to entering into a sexual intercourse.
Drawing parallels across the world, USA (Georgia and Florida) the age of consent is 16 years with exemption like which allows a 3-year age gap for minors aged 14-16. In Japan, the age of consent is 16. Drawing parallels from other jurisdictions, India can also amend the law by keeping close gap exemption of 3 Years between the consenting teenagers. In addition, if age threshold is also kept sixteen, it will surely help the teenagers to explore their sexuality without any fear. Additionally, it will also help the legislation achieve its goals by protecting children who are actually victims of sexual offences. Boys are mostly at the receiving end because of this legislation. The changes will surely help the innocent ones. The recent direction given by the apex court of the country to the Government of India to reconsider the legislation is a golden opportunity to safeguard the interests of minors who unknowingly become the victim .
Rajiv Ranjan, Assistant Professor of Law at UPES and Research Scholar at Nuals, Kochi .
Arvind Singh, Assistant Professor of Law at UPES and Research Scholar at Delhi University.
Views are personal
