Abstract
This article discusses the implications of sexual autonomy of children under international child rights regime upon Indian law. Indian general criminal law defining the offence of rape and a special statute defining different types of child sexual assault led to the inference that the current age of consent is 18 years. Despite statutory prohibition of child marriages in India, the general criminal law contains an explanatory provision exempting the rape of a married woman above the age of 15. The Supreme Court of India struck this down as discriminatory and inconsistent with existing provisions of law, increasing the age of consent of a married woman to 18. It is necessary for Indian law to clearly define the age of consent of children, and grant rights of sexual autonomy to children who are capable of making their own decisions, without compromising on penalising sexual offenders of children.
Highlights
Respect for human dignity and freedom lies at the core of the concept of human rights
The Roman tradition served as the basis for Christian Europe and the Christian Church, which set the age of consent at 12 or 14 years based on biological development, but continued to set the absolute minimum at seven years
The distinction between married and unmarried women regarding the age of consent for sexual intercourse, and the incongruence between age of consent for females in Indian Penal Code 1860 (IPC) and POCSO, has been removed by the Supreme Court
Summary
Respect for human dignity and freedom lies at the core of the concept of human rights. Prosecution of sexual offenders of girl children is possible, as various provisions in the IPC created offences of ‘rape’ (sections 375 and 376), ‘word or act intended to insult the modesty of a woman’ (Section 509) and ‘assault or criminal force to woman with intent to insult her modesty’ (Section 354) These offences are problematic in many ways, as the definitions, judicial interpretations and punishments are inadequate to address the issue of sexual violations of girl children. Sexual violations of boy children by males have been wrongly categorised under this provision, due to the lack of an adequate alternative It was only in 2012 that federal special legislation for protecting children from sexual abuse—the Protection of Children Against Sexual Offences Act 2012 (POCSO)—was enacted to punish offences of sexual nature against children under 18 years of age all over India. It is necessary for law enforcement personnel to be equipped to identify and deal with both abusive and non-abusive sexual behaviour of children in a child-friendly manner to uphold child rights principles under Article 12 of the UNCRC
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