Meaning and Definition of Consent in Law

Consent is a fundamental principle in criminal law that determines whether an act is lawful or amounts to an offense. In general, consent refers to a person’s voluntary agreement, without coercion or undue influence, to engage in a specific act.

Under Section 375 of the Indian Penal Code (IPC), 1860, the definition of rape considers the consent of an adult woman but excludes the consent of a minor girl (below 18 years of age). However, under the Protection of Children from Sexual Offences (POCSO) Act, 2012, consent is entirely irrelevant in cases involving children.

Legal Position of “Consent” Under the POCSO Act, 2012

The POCSO Act, 2012, specifically negates the role of consent when the victim is a child. Section 2(d) of the Act defines a “child” as any person below the age of 18 years, making it a strict liability offense where the consent of a minor is immaterial.

Key provisions regarding consent:

• Sections 3, 5, 7, and 9 define penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, and aggravated sexual assault, respectively, with no consideration of consent from the child.
• Sections 4, 6, 8, and 10 prescribe punishments for these offenses, treating them as absolute offenses where the defense of consent is not available.

Strict Liability and Irrelevance of Consent

Under the POCSO Act:

• Even if a minor voluntarily engages in sexual activity, it is still considered an offense.
• A minor lacks the legal capacity to give valid consent.
• Any claim by the accused that the child consented to the act is not a defense.

Case Laws Affirming Consent as Irrelevant

1. Independent Thought v. Union of India & Anr. (2017) 10 SCC 800

   • The Supreme Court ruled that sexual intercourse with a minor wife (below 18 years) amounts to rape, reading down the marital rape exception for minor girls under Section 375 IPC.
   • This judgment aligns with the POCSO Act’s intent to protect children regardless of their marital status.

2. Ravi v. State (2018 SCC Online Mad 2876)

   • The Madras High Court emphasized that even in cases of romantic relationships, consent from a minor girl is immaterial under the POCSO Act.
   • The conviction of the accused was upheld despite the victim admitting that she willingly accompanied the accused.

3. Ayyapan v. State (2015) Cri LJ 2651

   • The Kerala High Court reiterated that even if a minor girl elopes and engages in a consensual sexual relationship, the accused is liable under the POCSO Act.

Age of Consent and the POCSO Act

Under Indian law:

• The age of consent for sexual activity is 18 years.
• Any sexual act involving a minor (below 18 years) constitutes an offense under POCSO regardless of consent.
• In contrast, other jurisdictions (e.g., UK, USA) have different age thresholds, often with close-in-age exceptions, but Indian law follows a zero-tolerance approach.

The Issue of Teenage Romantic Relationships

Many cases under POCSO involve consensual relationships between teenagers, where the boy is prosecuted under the Act. This has led to:

• Concerns over criminalization of young boys in romantic relationships.
• The Justice Verma Committee (2013) suggested lowering the age of consent to 16 years, but the law remains unchanged.
• Courts have, at times, shown leniency in such cases by granting bail or reducing sentences.

Burden of Proof and Presumption Under POCSO

• Section 29: Presumption of guilt – The court presumes the accused has committed the offense unless proven otherwise.
• Section 30: Presumption of culpable mental state – The burden shifts to the accused to prove lack of intent.

Case Law: Presumption of Guilt

• State of Karnataka v. Shivanna (2014) 8 SCC 913
  • The Supreme Court held that in POCSO cases, the accused must prove their innocence, as the presumption of guilt applies.

Exceptions and Challenges

Consensual Relationships Between Adolescents

• Courts have expressed concerns over criminalizing romantic relationships between consenting teenagers.
• The Madras High Court (2021) in Vijayalakshmi v. State held that the POCSO Act was meant to protect children, not criminalize adolescent relationships.

Marital Exception Before Independent Thought Case

• Before Independent Thought, sexual acts with a wife aged 15–18 years were not considered rape.
• Post-judgment, the minimum age of consent within marriage is now 18 years.

False Cases and Misuse

• Section 22 of the POCSO Act penalizes false complaints with imprisonment up to 6 months.
• Courts have warned against misuse of the law to settle personal scores, particularly in inter-caste or inter-religious relationships.

Conclusion and Recommendations

Key Takeaways

1. Consent is legally irrelevant under POCSO.
2. The accused cannot plead the defense of consent in child sexual offenses.
3. The age of consent is fixed at 18 years, and any sexual act involving a minor is punishable.
4. Courts recognize the issue of criminalizing adolescent relationships, but the law remains strict.

Recommendations for Reform

1. Introduce a Close-in-Age Exception: A Romeo-and-Juliet clause can prevent criminalization of teenagers in consensual relationships.
2. Reduce the Age of Consent to 16 Years: Following the Justice Verma Committee Report, India could consider aligning its age of consent with global norms.
3. Judicial Discretion for Lesser Punishment: Courts should have discretion to impose lighter sentences in cases of mutual adolescent relationships.
4. Stronger Safeguards Against Misuse: Amend Section 22 to deter false cases, particularly in family disputes.

References 

1. Independent Thought v. Union of India & Anr., (2017) 10 SCC 800.
2. Ravi v. State, 2018 SCC Online Mad 2876.
3. Ayyapan v. State, (2015) Cri LJ 2651.
4. State of Karnataka v. Shivanna, (2014) 8 SCC 913.
5. Vijayalakshmi v. State, Crl.O.P.No.232 of 2021.
6. The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012).
7. The Indian Penal Code, 1860 (Act 45 of 1860).