Saumya Ranjan Dixit

This article explores the preparedness of India for the reduction in the age of consent. It highlights certain prerequisites that need to be met before reducing the age of consent under the POCSO Act. Otherwise, such reduction could open gates for greater perils and jeopardize the lives of youngsters below 18 years.

Introduction

Recently, many views were aired for changing the definition of “child” under Section 2 (d) of the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act) by reducing the age of consent from 18 years to 16 years. The said section defines “child” as “any person below the age of eighteen years”. The chief reasons cited for such reduction are misuse of the Act for criminal prosecution of youngsters in consensual relationships, that it operates as a deterrence in the exercise of their sexual autonomy, a barrier to access safe sexual health services due to police intervention and increasing caseload. These views are extremely welcoming in nature, signaling a liberal approach to recognize the sexual needs of teenagers. But addressing the question of whether India is prepared for such a reduction in the current scenario and the negative consequences which teenagers could face, puts the author in a liminal stand.

This article argues that certain prerequisites need to be met before trading upon such a change. Firstly, it highlights the rising number of unsafe sex cases in India due to lack of awareness and policy lapses which could potentially increase with such reduction in age. Secondly, it displays the menacing increase in unsafe abortions and counters the prevailing argument that such a reduction could lead to greater access to safe abortions by highlighting other social factors which compel persons towards unsafe abortions.[1]Thirdly, the risks arising from the unprescribed use of abortion pills is showcased among adolescents which poses greater danger to them. Lastly, some other risks and dangers are presented which too need to be countered before reducing the age of consent otherwise all these perils could snowball into greater threats and jeopardize the lives of teenagers.

SOARING UNSAFE SEX AND POLICY LAPSES

In recent years, there has been a tremendous rise in the sexual activity of adolescents in India which has also increased the number of unwanted teen pregnancies. These pregnancies not only make adolescent girls physically and mentally vulnerable leading to abortions, early childbirths and premature deaths but also affect the national income. One of the pivotal factors leading to such pregnancies is non-use of contraceptives. In India, there has been a decline in the use of condoms by 52% and vasectomies by 73% by 2016 which highlights an undue burden upon women for birth control and a growing reluctance of men towards the use of contraceptives. As per the NFHS-5 report of 2019-21, among non-married adolescents between 15 to 17 years, only 57.7% of girls and 53.6% of boys used condoms during their last sexual intercourse. Also, only 57% of girls and 45.6% of boys in the above age group used condoms at last higher-risk intercourse. This percentage exhibits the prevailing risk of unwanted pregnancies among young girls due to either reluctance to use contraceptives or lack of awareness about it. Further, the report states that only 19.9% of girls and 29.7% of boys in the above age group know how to take precautions against HIV/AIDS. As a result, there has been a rise in sexually transmitted diseases among teenagers which is extremely precarious for the health of adolescents having sex at such a young age. Analysing the above reasons, it appears that the social taboo related to the acceptability of condoms, lack of privacy in stores and lack of sex education have accentuated such risks. Moreover, the failed approach of the government to implement the “Adolescent Education Program” and its subsequent ban by 12 Indian state governments have also prevented the spread of sex education and deterred the normalization of the use of contraceptives.

Further, the move of the I&B Ministry in December 2017 banning condom advertisements on television from 6AM to 10PM not only forbids its normalization but also highlights the myopic view of the government. The interpretation of Rule 7(7) of the Cable Television Networks Rules, 1994 by the government is flawed in this context. Rule 7(7) states that “No advertisement which endangers the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner shall not be carried in the cable service.” However, the phrase “unhealthy practices” should not be applied to promoting the use of condoms during intercourse because it is a healthy practice that needs to be inculcated. Such use ensures the safety of children rather than endangering them which was misinterpreted by the government.

Here, it can be argued that decriminalizing sex between 16 to 18 years could lower the social taboos and increase safe sex. But this is a half-baked approach as the chief reason for unsafe sex among adolescents is lack of knowledge and awareness about use of contraceptives and its related health risks. Further, as per a research there is a reluctance by providers to supply condoms to unmarried youths, irrespective of their age, which shows that such a social taboo is not directly related to age but to pre-marital sex among adolescents. Again some other reasons like many adolescents believing that the use of condoms reduces sexual pleasure, leads to a reluctance towards using contraception. So, it is logical to contemplate that by such reduction in age the number of adolescents engaging in sex will increase as it shall legalize relationships between 16-18 age group teenagers. But it will have a perilous effect on those who lack knowledge of contraceptives, who are denied their use by providers due to their unmarried status and who abstain from using them for the sake of pleasure. However, these scenarios cannot be countered by merely reducing the age of consent as it could neither change the mindset of providers nor provide material facilities for sex education to teenagers.

PERILS OF UNSAFE ABORTION AND POLICY LAPSES

In India, following the report of the Guttmacher Institute, almost 53% of unintended pregnancies of adolescents between 15 to 19 years of age end with abortions. Out of these, 78% are unsafe and pose a greater risk of death. The WHO defines unsafe abortion as “a procedure for terminating an unintended pregnancy carried out either by persons lacking the necessary skills or in an environment that does not conform to minimal medical standards, or both.” In this regard, it is argued that a reduction in the age of consent could lead to greater access to safe abortion facilities as it is the fear of mandatory reporting to police and possible prosecution of male partners under the POCSO Act that prevent girls below 18 years from access to safe abortion.

However, this legal barrier is one of many but not the chief reason that prevents access to safe abortions. As per the UNFPA report, nearly 67% of abortions are unsafe in India which displays that women above 18 years are also undergoing unsafe abortions. This data is relevant to show that even if there is no such legal barrier to safe abortion for those above 18 years access to safe abortions is limited. This hints at different factors responsible for unsafe abortions besides the hanging sword of the POCSO Act.

Some of these issues are: first, lack of proper health care facilities especially in rural areas and lack of promotion of available abortion services which leads to rise in unsafe abortions. It is due to the lack of abortion facilities in PHCs and CHCs and lack of trained service providers that many are forced to adopt unsafe means. Second, the lack of confidentiality as well as ill-treatment of doctors based on social status leads to marginalization and deters one’s access to safe abortion facilities. Third, the State’s inability to halt the increasing access to the unregulated private sector for abortions. This in turn is due to abysmal quality of government services. The excessive amounts charged by the private sector and the informal fees charged in the public sector for providing safe abortions compel vulnerable women to seek unsafe terminations. Fourth, there are greater chances of delayed abortions majorly up to the second trimester among adolescents due to their ignorance, inability to recognize pregnancy or to hide it. This makes adolescent girls undertake urgent abortions, thus, driving them towards unsafe abortions. Fifth, many adolescents prefer clandestine abortions without informing and involving their parents. But Section 2(3) of the Medical Termination of Pregnancy (MTP) Act, 1971 requires the consent of guardians while terminating the pregnancy of minors, inevitably pushing them towards unsafe terminations. This brings an incompatibility between the reduction in the age of consent under the POCSO Act and the current MTP Act. On one hand, allowing more adolescents under 18 years to have consensual relationships and on the other, not allowing them abortion on their own can compel them towards unsafe terminations. Therefore, the alteration in the POCSO Act could present a new policy dilemma between the said two Acts.

Hence, the reasons outlined above show that even after reduction in the age of consent, these issues will not settle automatically and worse, could accentuate unsafe abortions. It requires stringent policy formulations and implementation by the government and cannot be achieved by simply reducing the age of consent.

THE RISK POSED BY UNPRESCRIBED ABORTION PILLS

Along with the grave medical reasons relating to physical, mental and psychological health due to unintended pregnancies, unsafe abortions and consensual relations at such a tender age there are some other overlooked risks attached to it. One such risk is the increase in self-medication abortions among adolescents to maintain secrecy and due to the easy availability of abortion pills. As per a study, many self-medication abortions are attempted without any prescription by registered medical practitioners because of easy availability as on-the-counter drugs. The study finds that the medications are mostly not taken as per the standard procedures which result in excessive bleeding, hemorrhagic shock in anaemic patients, incomplete and failed abortions leading to surgical evacuations. On the other hand, reluctance by pharmacists to sell such pills might escalate the tendency towards unsafe abortions. However, its unprescribed consumption coupled with the lack of information among the users about its correct usage, may lead to serious health problems among adolescents. Such a muddle primarily requires strict measures to regulate the unprescribed sales of these otherwise safe pills and awareness among pharmacists and people of their usage and negative side effects. This prerequisite needs to be met before reducing the age of consent, to protect ill-informed adolescents from severe health repurcussions.

PERUSING OTHER PREVAILING POTENTIAL PERILS

Apart from the health risks, there are other neglected dangers that may be exacerbated by lowering the age of consent without adequate policy corrections

• Escalating Suicidal Tendencies: The National Crime Records Bureau’s Accidental Deaths and Suicides in India (ADSI) report for 2021 reveals that the second most important cause of suicide among minors (below 18 years) is love affairs. This number has increased by 11.81% from the 2020 report. Moreover, as per the report, illegitimate pregnancy is also a factor in the category of “Other Cases” responsible for suicides. From these data, it can be inferred that failed relationships or other similar reasons among adolescents make them vulnerable to suicide. Further, there is an increased vulnerability to suicides among young women after an abortion. Thus, there is a need to guide adolescents to handle distressing situations properly as a primary requirement before making change in the POCSO Act. 

• Forced Child Marriage: As per recent research by CRY, one of the major factors for marrying children between 15-17 years of age is the fear of girls engaging in love affairs, having pre-marital sex, or eloping. Such fear exerts more pressure on girls to get married early. Child marriage is regarded as an escape from the perceived shame to the family’s honour due to the expression of sexual autonomy by having consensual relationships. This precariousness surrounding minor girls needs to be countered before legalizing their consensual relationships which could otherwise escalate the danger of child marriage.

• Increasing School/College Dropouts: In the current time of dawdling girls’ education, unwanted pregnancies and child marriages add to the existing barriers increasing the number of school dropouts. Unwanted pregnancies among teenagers prevent them from securing formal and higher education, thus, making them unproductive  and hampering their career prospects. There are also instances of parental violence or rejection of teenagers’ relationships that motivates them towards consensual relationships and elopement with the trust of later getting married. These instances also lead to dropping out of schools/colleges. Without a change to the conservative mindsets of parents, this trend can escalate.

• Teen Dating Violence (TDV): In India, intimate teenage violence among teenagers is prevalent. As per a survey, nearly 40% of teens between 16 to 18 years have become victims of sexual abuse, date rapes and forced sexual acts. The study further reveals that there is arise to other criminal activities including sexual harassment, blackmailing and circulating intimate images of female partners. TDV is the root cause of many different types of violence such as physical, sexual and psychological violence which severely hampers the life of young girls. This rise in violence mainly in the age group of 16 to 18 years can be fatal to adolescents and become a strong reason to die by suicide.

CONCLUSION

The above discussion regarding potential risks and dangers associated with consensual relationships among those below 18 years adolescents answer the question that India is currently not prepared for such a legal change. The urgent necessity of this change is understood as many innocent adolescents are facing painful trials as rapists even in presence of consent. But the growing crimes against and by youngsters, escalating violence and trauma, emerging health-related issues, and pernicious practices among teens also need great consideration. It is due to this reason that the author takes a liminal stand. It is recommended that the prerequisites should be met first as their negative impacts necessitate quick actions before reducing the age of consent.

[1] Amita Pitre and Lakshmi Lingam, ‘Age of consent: challenges and contradictions of sexual violence laws in India’ (2021) 29(2) Sexual and Reproductive Health Matters 461, 469 – 470.

The author is a 2nd year undergraduate law student at the National Law University, Odisha.