Contours of Consent and the Age of Majority in India

The author, Abhishek Sanjay is a First Year Student of BA.LLB (HONS) at NALSAR University of Law.

Consent, a fundamental aspect of ethical interactions, holds a central position in the legal landscape of India. The establishment of a fixed legal age for consent prompts a closer examination of whether this criterion adequately reflects the diverse societal values and developmental trajectories of adolescents. In India, the age of majority is fixed at 18 years under the Majority Act of 1875, and the debate around the legal age of majority primarily revolves around issues of consent related to sex and marriage. However, a closer look at the legal landscape reveals the curtailment of child autonomy and the lack of free agency.

The Indian legal system, like many others globally, grapples with the challenge of establishing a universal age for consent without considering individual circumstances. The predetermined legal age of consent may not align seamlessly with the multifaceted realities of human maturation, questioning its moral standing in the societal context. The existing legal framework jeopardises the very liberty it aims to safeguard by linking legal competence to age without taking into consideration the varied levels of maturity of individuals. Due to its inability to fully capture the complexity of human growth, this raises important problems about the viability of the legal age as a moral standard. The crux of the issue is the contradiction that exists between safeguarding the weak and appreciating the developing abilities of youth. An age-centric approach runs the risk of imposing arbitrary restrictions on people who could be well-suited to use their rights responsibly, even though protecting against exploitation is crucial. A more nuanced legal framework could consider additional criteria such as cognitive maturity, emotional intelligence, and capacity for independent decision-making.This thus raises the question: How does the legal determination of the age of majority impact the broader rights of autonomy and free agency in the Indian legal system?

The current status of the age of majority carries with it a corollary limitation that forbids children from entering into contracts. Although the purpose of this legal protection is to prevent minors from being financially exploited, the current environment, which is characterised by a rise in entrepreneurial opportunities and non-traditional educational pathways, calls for a critical analysis of the fine balance that needs to be struck between protective measures and minor autonomy. The prevalent assumption is that a minor lacks the necessary cognitive ability or maturity to comprehend the consequences and obligations that accompany the conduct of a certain act; thus, the law relieves minors from all obligations that arise from it. Under the Indian Contract Act, 1872, a contract entered into by a minor is void ab initio and the doctrine of restitution applies if such minor has taken benefits by entering into a contract and the same has been upheld inMohori Bibee v. Dhurmodas Ghose, 1903. The prohibition on minors entering into contracts is a noble attempt to protect their financial interests and warn them of possible harmful arrangements. However, the general prohibition against minors engaging in contractual relationships raises relevant problems regarding the junction of protection and autonomy in the modern era, where entrepreneurship and alternative educational paths have gained significance. The rise in entrepreneurial endeavours in which teenagers can participate actively in business initiatives calls into question the conventional notion that prohibits minors from entering into contracts. Barring them from such transactions runs the risk of stunting innovation and the development of young people who are equipped to contribute significantly to economic advancement. The requirement for a legal guardian in contractual agreements involving minors creates an additional level of difficulty. This clause seeks to provide responsible supervision; however, it overlooks the possibility that certain adolescents may not have a guardian. Paradoxically, the very measures meant to safeguard minors’ interests may work against their independence and limit their capacity for making mature decisions.

The age of consent to sexual relations serves as a complex and contentious aspect of legal frameworks, particularly when considering modern adolescent relationships. While the intention is to protect young individuals, the current system presents challenges that hinder the fluidity and understanding within consensual relationships among adolescents. Furthermore, even though the Protection of Children from Sexual Offences (POCSO) Act, 2012, was enacted in order to prevent child sexual abuse, there are occasionally unforeseen effects. The Act has been deployed to prosecute young males in adolescent relationships that are consensual, raising concerns about the appropriateness of imposing strict legal requirements on relationships that may be marked by mutual understanding and permission. The same sentiment was echoed in the Calcutta High Court judgement of ProbhatPurkait Provat v. The State of West Bengal, 2023, wherein the Hon’ble Court, while calling for comprehensive sexual education and policy reforms to safeguard the rights and interests of adolescents stated that if one’s consensual sexual choices are not respected by society but are criminalised, thenone’s innate sense of self-worth will inevitably be diminished.Further, the existence of a statutory provision that punishes forms of sexual expression that are developmentally normal degrades and inflicts a state of disgrace on adolescents. The court further suggested the inclusion of legalisation of consensual relationships between adolescents aged 16-18. Adding to the complexity is the gender disparity in the legal age for marriage. The Prohibition of Child Marriage Act of 2006 sets the legal age for marriage at 21 for males and 18 for females, which perpetuates an outdated notion that differentiates between the maturity levels of males and females. The prevalence of such differences raises questions about the maintenance of conventional gender norms and the unequal treatment of both sexes in a modern society that strives for gender equality. The imposition of gender-based marriage age limitations prove contradictory in a society that strives for gender equality and values individual choice. Individuals ought to have equal agency in making decisions regarding their relationships and marriages, regardless of their gender.

There exist discernible lacunae within the present legal framework of the country concerning the nuanced concept of emancipation of minors from parental authority, both antecedent to and subsequent to the attainment of majority at the age of 18. The present legal landscape lacks explicit provisions delineating the process for the emancipation of minors, necessitating a comprehensive legislative initiative to address this. Furthermore, these gaps are present in crucial legislations regarding adoption in India, including The Juvenile Justice (Care and Protection of Children) Act, 2015(hereinafter referred to as the “JJ Act, 2015”) and the pursuant Adoption Regulations, 2022. These laws, while including dissolution of adoption under the grounds of abuse and incapability of parents fail to acknowledge the free agency of the child in question and reduce the minor to mere black letters. This omission represents a fundamental deficiency that impedes the realisation of children’s rights to autonomy and free agency and is not just a procedural blunder. It is crucial to emphasise the importance of acknowledging and implementing children’s rights to autonomy and free agency within the legal system as we negotiate the complexity of the modern world. An essential first step in recognizing child rights and shifting social norms that demand the legal inclusion of such rights is acknowledging the freedom of children. It is a step in the direction of removing presumptions about maturity and decision-making ability based on age and is crucial in aligning with the overarching principles of human rights, specifically the right to autonomy and free agency.

While it is imperative to acknowledge that the age of consent and majority are sensitive topics to be dealt with, it is crucial for the Indian judiciary and legislation to traverse the tight rope between the former and the rights of the adolescent. A comparative analysis of existing legal frameworks can offer valuable insights. The JJ Act, 2015 provides an interesting precedent. The Act allows minors between the ages of 16 and 18 to be tried as adults for heinous crimes. The criteria for such a trial involve a comprehensive assessment by the Juvenile Justice Board, considering the child’s physical and mental capacities, their understanding of the consequences of the crime, and more. This approach recognizes the varying levels of maturity among adolescents and tailors the legal response accordingly. The JJ Act, 2015 may serve as an inspiration for the judicial system’s implementation of a sophisticated evaluation process for emancipation cases. An assessment of this kind could take into account things like the minor’s emotional intelligence, capacity for making decisions, and comprehension of the obligations that accompany freedom. The creation of an Emancipation Review Boardakin to the Juvenile Justice Board may enable a dispassionate assessment of every instance, guaranteeing that the legal acknowledgement of emancipation corresponds with the particular circumstances of the minor concerned. Educational initiatives and a nuanced public discourse can foster a culture that encourages responsible decision-making among adolescents. Striking a delicate balance between safeguarding children’s rights and respecting cultural sensitivities is paramount, and the ongoing collaboration between legal entities, stakeholders, and the broader society is essential to navigating these intricacies. A thoughtful and inclusive approach by the legal system can evolve to empower adolescents without compromising the sensitivity surrounding the age of consent and majority.

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