16 was the age of consent since 1983. It was 10 in 1860 when the IPC was enacted, 12 in 1890, 14 since 1929 and 15 since 1949. It was raised to 18 only in November 2012.

We are witnessing a historic moment. Our legislators have assembled to enact a statute to set right a historical wrong and to uphold women’s dignity as enshrined in our Constitution. Not just women’s groups, but also the youth gathered at India Gate and Jantar Mantar in large numbers, braving the Delhi winter to protest against the brutal gangrape and murder of a 23-year-old student, are waiting with bated breath, to see which way our legislators, a majority of them men, will vote.

The international media glare on the Delhi gangrape and the subsequent incidents of sexual assault have served a lethal blow to our image as a modern, progressive and woman-friendly nation. Coming in the wake of our extremely low rating in the gender index on women’s health and survival in recent years, the Delhi gangrape was a wake-up call for the government to redeem its tarnished image.

The setting up of the Justice Verma Committee within a week of the incident was the first welcome move. The monumental report produced within the stipulated period of one month went far beyond its mandate of suggesting changes in the current rape laws and brought out a new gender policy, striking at the very root of patriarchal power structures. Responding in haste within 10 days, the government brought in the Criminal Law Amendment Ordinance, a half measure, but at least a beginning. It was a slight improvement on the 2012 bill already pending in Parliament. But overriding the Verma Committee recommendations and framing the offence in gender neutral terms under the garb of modernity was a step in the reverse. This formulation was in utter disregard of the prevailing social reality and increasing gender specific violence which had warranted the reforms in the first place. Fortunately, better sense prevailed and the word “rape” was brought back and the existing framework of gender specificity retained.

Obviously, in an effort to arrive at a consensus, the government has skirted tricky issues, such as repeal of special priviledges awarded to men from the armed forces who commit rape and the suggestion to bar politicians charged with committing rape from contesting elections. Even marital rape, a long-standing demand of women’s groups, has been left out, in reverence to the male ego, perhaps, while theoretically endorsing the demand. Sexual violence committed upon wives is far more complex and nuanced and needs separate redressal. It cannot be dealt with cursorily within the prevailing matrix of “rape law”, historically premised on violation of vaginal purity.

Now as the stage is set for the final seal of approval, the controversy seems to be around the age of consent. While the government has retained the age of consent for sex at 18 years in the bill, which was approved by the Cabinet on Monday, this issue has split activists groups, ministries and parliamentarians down the middle. Strangely, it has pitted women’s groups against child rights groups, the ministry of women and child against the ministry of law, and the ruling party against the Opposition. Shrouded in confusion, the public debate lacks clarity.

Predictably, the BJP has framed its opposition in the language of “preserving” our culture and tradition. Najma Heptulla, the BJP spokesperson, speaking on a news channel exposed her ignorance when she declared, “India is not ready for it,” implying thereby that low age of consent is a “Western tradition”, oblivious of the reality that 16 was the age of consent since 1983. It was 10 in 1860 when the IPC was enacted, 12 in 1890, 14 since 1929 and 15 since 1949. It was raised to 18 only in November 2012, when the Prevention of Sexual Offences Act came into force without sufficient public debate. But the police were ignorant of this new act until the media glare post the Delhi gangrape, and only since January 2013 have a few cases have been registered under it.

There is no data available on whether any case concerning consensual sex with a girl between the age of 16 and 18 has so far been registered under it. On the other hand, the minister for women and child development has said that lowering the age will encourage child marriage, totally disregarding the social reality that the age of marriage for girls increases only when the standard of living increases and public spaces are safe for our girls to pursue their education. In an incident which took place in rural Karnataka, a young girl on her way back from school on a bicycle was gangraped and thrown into a well. She was saved by passersby who noticed her struggling for life. Thereafter, the entire village has stopped sending girls to schools outside the village confines. These girls will soon be married off, despite a law in place that stipulates the age of marriage as 18.

The child rights groups concerned with the global trend of trafficking of minors are opposing reduction of age to 16 on the premise that it will encourage child traffickers. But we cannot collapse two different concerns — the issue of trafficking of minors and consensual sexual activity between young adults. The new bill has stringent provisions on trafficking and there is no intention on the part of the government to skirt this issue. So this argument lacks validity.

The two main concerns for those resisting the increase in the age of consent are, increasing parental control over young adolescents and criminalising a normal sexual activity. Perhaps a discussion on Selvey’s (name changed) case may help shed some light. Selvey approached a public hospital with pregnancy-related problems. When her age was recorded as 15, despite her protest, the police was called and her mother was forced to sign the FIR. A young Muslim boy of 23, a garage mechanic, was arrested and has been in judicial custody since. The incident occurred even before the Protection of Children from Sexual Offences Act, 2012, with its provisions of mandatory reporting of “sexual offences”, came into force.

A fortnight later, Selvey delivered a daughter. Her only concern during the past 10 months has been to meet the father of her child, every time he is brought to court, along with her infant. Her efforts to get him out on bail have been futile. Her only fault was that she did not realise that she was pregnant in time to undergo an abortion, her mother truthfully admitting that she is not married, and that she is too poor to afford a private nursing home. Obviously, she turned hostile during the trial last week. It is anyone’s guess whether the boy, once acquitted, will marry her after the ordeal of incarceration for nearly a year, for which she was not responsible.

Anyone who has even cursorily examined sessions court judgments will notice a sizeable number of cases termed “statutory rape” or “technical rape” where the girl has eloped with the boy and her parents have filed a case of rape in order to bring her back, only to get her married to a boy of their choice. If the age of consent is raised, these type of cases will increase and the police will have unbridled power over young couples at the instance of their parents. The wrath of the parents is severe when the boy belongs to a lower caste or minority religion. It is these cases which get termed “false cases” by judges, police, lawyers and prosecutors alike.

And it is the young boys from these poor families who will have to face the harsh sentence of minimum seven years for indulging in an act which is part of a normal growing-up process. This is something that political parties such as the Samajwadi Party, the Bahujan Samaj Party and the Janata Dal(United) would do well to take note of.

By Guest Writer Flavia Agnes. The writer is a women’s rights lawyer