APPROACH OF ROMEO AND JULIET LAWS IN INDIA

- AAISHWARY RAJ

1. ORIGIN AND DEFINITION

In Shakespeare's tragedy, Romeo and Juliet, the age of Romeo is 16 and Juliet is 13 years.[1] Both the lovers were minors and in the beginning of Act III, scene V, it is also indicated that they were involved in sexual intercourse.

Drawing inspiration, the phrase Romeo and Juliet Law is used to indicate sexual intercourse between boy and girl where the difference between the age of both are not more the four years. It is a close-age consenting sex. It protects the boy from being tried for committing rape against the girl. It rests on the belief that the difference in mental capacity and maturity of 17-year-olds and 21-year-olds are not much and so they should be treated as a consenting adult.[2]Additionally, the mental capacities of consenting minors are roughly comparable because a three- or four-year difference in age is insufficient to indicate that a person's mental ability is so great that it can affect others.

2. AGE OF CONSENT IN INDIA

Currently, in India, the age of consent for girl under Indian Penal Code (section 375) stands at 18 years. Similarly, under the POSCO Act, the age of consent is 18 years. That means any sexual act between consenting parties below 18 will be punished under POSCO for a minimum of ten years, which may extend to imprisonment for life.[3] This rigid interpretation of the act does not take into consideration the sexual acts that are fully consensual in nature. Similar regrets were expressed by Chief Justice D.Y. Chandrachud on consent provisions in POSCO and urged to reconsider it. He further stated that it becomes a problem for a judge when the act is done with consent, but they must punish regardless of that, as POSCO punishes all sexual acts among those under 18.[4]

It is largely seen that a sexual act indulged by a girl child is unaccepted by parents and they use acts like POSCO to their advantage and start a trial against the boy. Even though the act was consensual by both parties, but then also the boy bears the brunt of the law and is punished as the perpetrator. This can be seen as criminalizing innocuous behaviour. Three studies done between 2018-2022 point out that in approximately 18-25% of the cases registered under the POCSO Act, the victims and the accused were either found to be in consensual relationships or these were romantic cases.[5] Clearly, these were the cases where parties had consensual sex but were later charged with POSCO provisions. Boys even if found not guilty bears the social stigma for life. Some are not lucky enough and get convicted. For a Judicial System that believes that 1000 culprits can escape, but, one innocent person should not be punished[6], this figure does not reflect good on it.

3. GROUND REALITIES

Indians, in the globalized world, are getting more westernized where the age of consent is general below 16. Wide internet access provides an easy medium for accessing pornographic material. It is a reality that people have sexual feelings from a very early age, considering that sex is a natural behaviour[7], teens too indulge in sexual activity. A study conducted states that sexual desire starts emerging in teens even below the age of 14.[8] With the opening of society and liberal ideas spreading in India, boys and girls easily come in contact with each other more often and try to fulfil their biological desires.

Currently, there is a lack of on-ground surveys regarding how sexually active the Indian teens are but a few studies have revealed that 30% of the boys and 17% of the girls in class 9th- 12th are sexually active.[9] These figures speak volumes in contrast to believed societal norms.

4. LEGAL PRECEDENT

The ground realities have been taken into consideration by judges in a few cases as in Sabari, Sabarinathan, Sabarivasan v. The Inspector of Police Ors,[10] where it was held that,

Consensual relationships between teenagers aged between 16 and 18 years who are infatuated or innocent should not come within the purview of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The court further declared that the current definition of a child should be redefined as someone below 16.

The judgement of Vijaylakshmi vs State of Madras[11] also has similar views,

An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop should essentially receive the support and guidance of their parents and the society at large. Hence incidents should never be perceived from an adult's point of view and such an understanding will lead to a lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life.

It can be inferred that prosecuting these cases as criminal offences will deviate from the intended purpose of the POSCO Act.

A single bench of Justice Bharati Dangre of Bombay High Court held that[12],

Sexual relationships between minors should not be dealt with a punitive approach.

Justice Dangre clearly expressed his concern over the criminalization of romantic relationships between minors and urged for more progressive law that take into consideration the sexual and reproductive health of adolescents.

The Dharwad bench of Karnataka High Court referred the Law Commission to relook into the age of consent, looking into rising cases of minor girls above 16 falling in love, eloping and having sexual intercourse and subsequently attracting sections of IPC, 1860 and POSCO Act.[13]

These legal precedents point towards and explore reducing the age of consent for girls and acknowledging the social realities where more and more teenagers are engaging in sexual acts and see these acts as individual in nature and harmless to society at large.

5. COMMITTEES AND COMMISSIONS RECOMMENDATION TO REDUCE AGE OF CONSENT

In 2010, The National Commission for Protection of Child Rights proposed that any sexual act involving two individuals who are both above 14 and have the same age or age gap of no more than three years should not be considered illegal.

The 22nd Law Commission in its recent recommendation suggested amendments to the POSCO Act. It suggested that in cases where the sexual act is consensual in nature for the age group 16-18, the case should not be treated with the same severity as that of forced and non-consensual one. [14]

A number of our constitution's provisions support reducing the consent age. Lowering the age of consent is also in harmony with Article 21. Reproductive rights under Article 21 allow one to decide for their body and sexual decisions by one can be inferred from reproductive rights. Sexual and reproductive rights are integral to basic human rights.[15]Consenting sex is also consistent with Article 19, which guarantees the freedom of choice and expression. Since sexual activity falls under the category of expression, it is protected as a fundamental right. The time has come when the legislature needs to reconsider the age of consent as recommended by various committees and commissions and bring it down to match the social realities of modern India.

6. CRITICISM FOR REDUCING AGE OF CONSENT

Reducing the age of consent will undoubtedly benefit those teens who are attempting to explore their sexual desires, but it will also undoubtedly have many unfavourable effects.

India has been a country which is deeply attached to ancient roots and ethos which looks at sex before marriage as a sin. Reducing the age of consent will give bad message in teens and can make them indulge in more sexual activity. Because there is no legal restriction, teen who previously would not have indulged in sexual activity will also try it. The lack of sex education in India is well known and, in such a situation, allowing for sex for children above 16 can have negative mental and physical impacts. It can also lead to unwanted pregnancy if safe sex is not performed due to a lack of knowledge.

The laws as they stand also serve as a "refusing ground" for teenage girls who wish to abstain from sexual activity. The current "refusal ground" will undoubtedly disappear if the age is lowered from what is currently required by law.[16]

In the worst situations, if age of consent is lowered, it can also leave girls without any legal recourse against those who will abuse the provisions by pressuring girls above 16 to engage in sexual activity with the knowledge that they won't be charged under POSCO Act. Reducing age of consent will lead girls to a vulnerable situation rather than liberating them. It will also be challenging to ascertain whether the girl was forced to perform the act or whether there was sincere consent.

Child abuse is another huge problem faced by our country. A report by the National Centre for Missing and Exploited Children from 1998 to 2017 puts India on the Top list on reported child sexual abuse imagery. [17] The present age of 18 brings many girls in the bracket to seek justice for the abuse committed against them. If the consent age is lowered to, say, 16, a large number of girls will be left out of the current Act and will be forced to deal with rape cases as regular ones.

7. CONCLUSION

India has one of the highest age of consent in the world.[18] It does not reflect well on a country that aspires to be a world leader. A higher age of consent reflects a patriarchal society with more control over girls bodily choices. It is no coincidence that the world over, a more progressive society, has a low age of consent. This argument should be taken into consideration while also considering Indian culture, society, and ethos. India has its own unique issues and characteristics. Solution must take into account the Indian circumstances. POSCO Act was brought in 2012 which increased the age of consent to 18 from the prevailing 16. It had many consequences, both positive and negative. On one hand, it gave legal backing to girls who were sexually abused to try perpetrators more harshly, but it has also restricted the sexual choices of girls in modern India. Consenting sexual acts are seen as rape and have no distinction from ordinary rape cases. An informed, responsible and consenting sex by an adolescent of a close age person is restricted in the present law. After the passage of the POSCO Act, ten years ago, India has seen a dramatic social shift in which an increasing number of teenagers over 16 are attempting to satisfy their sexual urges by engaging in consensual sexual acts. Laws need to reflect the present society. A clear distinction is important to differentiate between consenting and non-consenting acts. Romeo and Juliet law protects the boy in these consenting cases, where the age difference is three to four years. Indian legislators should consider the Romeo and Juliet law and should allow close-age consenting sex with minors but a delicate balance also needs to be considered. A balance between safeguarding children from exploitation at the same time acknowledging the autonomy of young people in intimate relationships. Justice and fairness in the handling of such sensitive matters in India must be ensured by a careful and thorough re-evaluation of the current legal framework.