New Delhi: The Supreme Court has issued notice to the Centre on a plea challenging the vires of the statutory rape laws that criminalise consensual sex by 16 to 18 years. A bench led by Chief Justice of India DY Chandrachud and also comprising Justice JB Pardiwala and Manoj Mishra issued notice to Centre asking them to respond to the plea. The petitioner Harsh Vibhore Singhal is an advocate, and in his public interest litigation, he has challenged the vires of the statutory rape laws that criminalise consensual sex at 16 to 18-year-olds possessing physiological, biological, psychological and social capacities, competence to assimilate and evaluate information to understand and comprehend risks, freedom to make informed choices to convey affirmative decisions or otherwise, and have the agency and decisional/bodily autonomy to fearlessly, freely and voluntarily do what they wish to do with their bodies."
"That it is the petitioner's case that criminal sanctions are inappropriate against adolescents for consensual non-exploitative sexual activity. Sex involving persons aged below 18 years may be consensual in fact, if not in law. Hence, enforcement of criminal law must reflect the rights and capacity of such persons to make informed decisions about engaging in consensual sex and their right to be heard in such matters," the petition read. It added, "The legislative intent of statutory rape law is to criminalise such consent of persons below the age of 18 years who despite having consent capacities - wilt and succumb to intimidation, deception, inducement, allurement, manipulation, blackmail, misconception of fact, dominance, control, fraud etc, not otherwise. It is easy to recognise that if someone at an ATM asks for your PIN number (i.e. consent for sex) while holding a knife to your back (Mens rea) and you give the PIN, you are not consenting to being robbed (i.e. having sex)."
HC directed petitioner to approach SC
He said that he has approached the Delhi High Court on this subject matter but the HC observed they do not have power to frame guidelines for consensual sex and it is best that petitioner go to the Supreme Court.
In his plea to the top court, the petitioner sought to issue direction "to evolve and declare a set of binding guidelines and principles on lines similar to Vishakha. He also sought that the law enforcement agencies, related ministries, departments and bodies (listed in the Memo of Parties) that in cases of consensual, before indicting the adult partner for having sex with an adolescent, the affirmative statement to the police and to the magistrate under section 164 CrPC that the 'sexual contact was free, voluntary and consensual' on the part of the adult is deemed insufficient to absolve the adult due to the law of statutory rape."
Let CAB assess and determine if adolescents have adult attributes
In this case, the 16+ to under 18-year-old adolescent must be assessed by a Capacity Assessment Board (CAB) constituted on lines similar to the Juvenile Justice Board (JJB) under the Juvenile Justice (Care and Protection of Children) Act, 2015 to first assess whether the adolescent has the necessary markers, qualities and attributes of an above 18 adult to give meaningful consent for engaging in sex", the petitioner argued. "Such capacity assessment must be done on necessary parameters in much the same way as the JJB assesses 16+ to under 18-year-olds for commission of heinous offences to determine if they can be tried in a criminal court as adults. If the CAB determines that such 16+ to under 18 has adult-like attributes, then the consent to have sex must unequivocally be deemed as the veritable consent of an above 18 adult thereby making inapplicable the law of statutory rape upon the adult sexual partner," the petitioner urged.
Appealing to the top court, the petitioner said, "Pass a writ of mandamus under Art 32 or any other direction in the nature of writ and exercise its powers under 142 to decriminalise the law of statutory rape as applied to all cases of voluntary consensual sexual contact between any 16+ to less than 18 years adolescent with another similar age adolescent and with over 18 years adult subject to the CAB clearing the consent for sexual contact as that of an over 18 years adult".
Hold registering case until CAB report
The petitioner further prayed to the top court to issue direction that until the determination by CAB regarding the (adult-like) status of the sexually active 16+ to <18 adolescent, no criminal case be registered against the concerned >18 adults under the law of statutory rape in cases where the sexually involved <18 states under 164 or 161 CrPC that sex was voluntary, free willed and consensual absent Mens Rea. The petitioner also sought to direct that if any criminal case is registered for statutory rape, then the police report shall be kept in a sealed cover and no further proceedings shall be carried out under the law of statutory rape until the CAB submits its report regarding the 'adult' or minor status of the <18 adolescent.
Identities to be kept unknown
It also sought direction in the nature of writ and exercise its powers under 142 directing that in any case, the identity of the 16+ to <18 year old shall not be disclosed or revealed in any criminal case registered under statutory rape if the CAB rules that the consent of the <18 cannot be deemed to be the consent of an adult.