Supreme Court To Consider Whether Consensual Sex Among Adolescents Aged Between 16 And 18 Years Is Rape
The Supreme Court, on Friday, issued notice in a Public Interest Litigation (PIL) seeking decriminalization of the offence of rape involving voluntary consensual sexual contact between adolescents above the age of 16 years and below the age of 18 years.
The Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra after hearing at length the Petitioner-in-Person, Harsh Vibhore Singhal, sought the Response of the Union Government and issued notice in the PIL.
The PIL filed by Advocate Singhal contests the validity of statutory rape laws that classify consensual sexual activity among individuals aged between 16 and 18 as criminal. The challenge is based on the argument that these individuals possess the physiological, biological, psychological, and social capabilities, as well as the agency and decisional/bodily autonomy, to engage in actions with their bodies according to their wishes, without fear or inhibition, in a voluntary and unrestricted manner.
The Petitioner highlights that before approaching the Apex Court, a similar Writ Petition was filed in the Delhi High Court and wherein it was observed as obiter dicta that ‘we do not have the power of 142 to frame guidelines for consensual sex and it is best that petitioner goes to Supreme Court.’ Singhal submits that allowing the withdrawal of the Writ Petition with liberty to approach the Apex Court signifies and implies that the High Court saw sufficient substance, logic and rationale in the petition. Else, if unworthy and undeserving of consideration, it would have been dismissed, as per the petition.
Administration of Emergency Contraception Pills Permissible for all Ages
"Why is the administration of Emergency Contraception Pills legally permissible for any person of reproductive age, regardless of their age or marital status, while sexual activity among individuals aged 16 and above but under 18 is considered a crime?", the petitioner asks in the petition.
It is submitted in the PIL that as per the Guidelines of the Ministry of Health & Family Welfare Emergency Contraception Pills should not be denied to clients in their reproductive age group irrespective of their age or marital status. This indirect acknowledgement implies that individuals aged 16 and above but under 18 are and will be sexually active.
"That no one seeks contraceptives in the anticipation of getting raped or for sexual violence! Contraception is used when sex is contemplated. Besides, Rule 3B of MTP Act, 1971 which allows abortions to minors doesn’t specify whether pregnancy is due to consensual or coercive sex. The question is: how can abortion by an <18 make consensual sex a criminal offence but such sex before pregnancy is deemed legitimate & acknowledged by the State by the unrestricted, unquestioned and ready access to contraceptives and ECPs?", reads the PIL.
It has also been added that "That indicting adult partners of consensual <18s only due to pregnancy while ‘turning a Nelson’s eye’ to consensual sex by distributing contraceptives is akin to allowing unlicensed persons to drive motor vehicles on public roads and expressways but arresting them for driving without license only due to road mishaps!".
The Petitioner further relies upon the numerous Judicial precedents where bail has been granted in such cases of 'consensual sex', quoting a few examples it is stated that "A) In Appeal No. 5802/2022 in SLP (C) No. 12612/2022, Supreme Court allowed abortions for unmarried girls saying that POCSO ‘does not prevent adolescents from engaging in consensual sexual activity’; B) In Praduman Vs Govt of NCT of Delhi, the Delhi High Court observed, “this FIR has been filed giving it the colour of sexual exploitation and bringing it in the ambit of the POCSO Act”; C) In Shri Olius Mawiong & Anr Vs State of Meghalaya & Abr, Meghalaya High Court quashed an FIR when it learnt that despite consensual sex with knowledge and concurrence of her mother, the FIR was registered; D) Bombay High Court ruled that POCSO never intended punishing consensual sex and gave bail. Likewise, Delhi High Court gave bail to a 19-year-old saying, criminal intent of any kind was completely missing."
It has also been stated in the Petition that the Prohibition of Child Marriage Act, 2006 (PCMA) raises puzzling questions. For instance, the consent of a 16+-year-old is considered valid due to marriage, but invalid if not married. Highlighting the same, the Petitioner raises such queries: (a) Is a married 16+ girl engaged in consensual sex with her husband prohibited from having sex outside her marriage? (b) If she annuls her voidable marriage before turning 18, would she be prevented from consensual sex simply because she is no longer married? (c) Can adults engaging in consensual sex with such 16+ to <18-year-olds face statutory rape charges simply because she was previously married and sexually active, but is now single? (d) Does marriage impact the decisional autonomy for sexual activity in 16+ year-olds (considered adults due to marriage), but not if she becomes single due to divorce, separation, or widowhood?
"That if the Justice Juvenile Board can determine that an <18 boy can be tried as an adult for digitally raping an <18 girl and he can be jailed for 20 years, there is no reason why an <18 girl cannot be assessed by Capacity Assessment Board to determine if she can be tried as a veritable adult and if so, her consent to have consensual sex with an >18 adult must be deemed to be the consent of an adult making the law of statutory rape inapplicable upon the adult sexual partner", reads the PIL.
The Petitioner categorically seeks direction to decriminalize the law of statutory rape as applied to all cases of voluntary consensual sexual contact between any 16 to 18 adolescents and directions under Article 142 to evolve and declare a set of binding guidelines and principles on lines similar to Vishakha and such similar prayers.
Cause Title: Harsh Vibhore Singhal v. Union of India & Ors [Writ Petition(s)(Civil) No(s). 700/2023]