The Dichotomy between the Sexual Autonomy of the Child and Indian Laws in the Light of Evolving Capacities of the Child

Abstract

‘Adolescence’ is referred as a transition from childhood to adulthood and at the adolescent stage the child began to encounter biological, mental, and emotional changes and embark on thinking independently and critically. Convention on the Rights of the Child (CRC) recognizes the ‘evolving capacities’ of the adolescent and their capability to take decisions with respect to matters affecting their life. Article 16 of the CRC also guarantees adolescent right to privacy and confidentiality over medical advice, counselling etc. But despite this, over the world, only a very few countries recognize the mental capacity of the adolescent in decision making. Under the Indian Law barring very few exceptions, the concept of ‘adolescence’ has not been legally recognized in the laws. In this background, this paper analyses the legal liability and capacity of adolescent under various Indian enactments, brings out the rights of adolescent under the Child Rights Convention (CRC), analyses Gillick competency prevailing in UK to put forth the claim that the evolving capacities of the child cannot be undermined in the laws pertaining to sexual autonomy and privacy of the adolescent. Besides bringing forth the inconsistencies in the existing enactments with respect to sexual autonomy of the adolescent, the paper critically analyses the provisions of POCSO and other enactments which treats even consensual sexual relations as a punishable offence.