A country’s laws regarding sex, sexual orientation, sexual consent, sexual and reproductive health, access to abortion services and access to different types of contraceptives can often become autonomy-snatchers in the name of protecting children and adolescents.
Even though Indian law does not explicitly prescribe any minimum age for accessing or buying condoms, there are indirect legal barriers which might make condoms less accessible for people belonging to a certain age group. Additionally, social and cultural mentalities also make the practice of accessing condoms difficult and stressful, so much so that those affected by these often indulge in unsafe sexual activities at the cost of their physical wellbeing.
As per the Population Council’s 2016 report, out of the 10,400 adolescents who were part of the survey from Bihar, 14.1% of unmarried boys and 6.3% of unmarried girls had engaged in sexual activity. Out of these, 28.5% girls and 22% boys had had sex before they were 15 years old. Further, condoms were regularly used only by 20.3% of unmarried boys and 8.2% of unmarried girls. The same report also revealed that adolescents, 17.2% of adolescent boys and 6.2% of adolescent girls, in Uttar Pradesh are also sexually active (1).
Age of consent
In India, the legal age of consent is 18 years. This implies that anyone who engages in sexual intercourse before they are 18 years old is doing something that the law does not permit. This legal nuance can create barriers to access. Many of the adolescents who want to engage in sexual activities but are less than 18 years of age might feel intimidated by the fact that they cannot legally consent to sexual activities that they willfully wish to engage in.
While this legal barrier may stop some from having sex until they are 18, it will force many others to have unsafe sex. They might be afraid to go to a pharmacy or other stores selling condoms for a lack of certainty as to whether the pharmacist or shop-owner would sell the condoms to them. Often, the pharmacist or shop-owner might try to estimate the age of those who come to purchase condoms and if they feel, as would be the case with many people below the age of 18, that the person is a ‘child’ (WHO defines a child as any person less than 18 years old), they might refuse to sell condoms to them.
Does the law interfere with our sexual and reproductive rights?
Although access to contraception (and to safe sex) is a basic sexual and reproductive right, our legal framework on consensual and non-consensual sex creates problems in ensuring that this right is available to people of all ages. Even though the law does not see those below 18 as capable of consenting to sexual activity, many adolescents, particularly those between 16-17 years of age, are sexually active (1).
Given that India has the largest number of adolescents in the world (2) this puts a large number of people at the risk of getting Sexually Transmitted Infections (STIs) and a large number of girls at the risk of having unwanted pregnancies and unsafe abortions.
Law – a mirror of social and cultural beliefs?
The attitudes of healthcare providers who sell condoms might be influenced by long-standing social norms and cultural beliefs. Although we have come a long way in destigmatizing pre-marital sex, we still have the limited perceptions that sex before people enter adulthood, and sexual experiences which are not to procreate, are reserved only for adults and/or married couples.
The sexual and reproductive health of adolescents below the age of 18 thus takes a backseat. People who can make contraceptives such as condoms easily available to adolescents almost always have judgmental attitudes. Legal barriers like the minimum age for consent could be reinforced by such social and cultural mindsets. Ultimately, several of those below the age of 18 will still have sex but would be discouraged from buying condoms for a safe sexual experience.
Public Health Programmes to improve access to condoms
In India, the National Aids Control Programme(NACP) which is run by the National Aids Control Organization(NACO), a division of the Ministry of Health and Family Welfare, ended its phase IV in March, 2020. The programme aims to reduce and prevent the incidence of HIV transmission in the country.
As a part of its Targeted Interventions(TIs) among those who have a high risk of acquiring HIV, it focuses on “the promotion and provision of condoms to HRG(High Risk Groups) to promote their use in each sexual encounter”. Under its strategy of condom promotion, focus is on increasing demand and availability of condoms . Free condoms, called Nirodh, are procured by the Ministry and then distributed by NACO through NGOs, Anti-Retroviral Treatment(ART) centres and Integrated Counselling and Testing Centres(ICTC).
Condoms are also distributed through Social Marketing Organizations which use promotional campaigns to sell condoms at subsidized prices. Under the NACP, condoms are also marketed as private brands and sold commercially at full prices.
The Reproductive, Maternal, Newborn Child plus Adolescent Health (RMNCH+A) programme focuses on improving maternal and child health by using a holistic approach and covering health throughout the lifecycle. Under its family planning services, free condoms are available at government health centres and are also distributed in rural areas by Accredited Social Health Activists(ASHAs).
We need to adopt a balanced approach when it comes to legislation that might directly or indirectly affect young people’s access to contraceptives such as condoms. Although the age of consent in India is set at 18 years with an alleged view to protect children and teenagers from sexual exploitation and abuse, such a blanket law takes away their sexual and reproductive rights. The age of consent must not be too high since that leads to many below the age of consent to have unsafe sex or to not engage in sexual exploration at all. It should also not be too low because that increases the risk of children and young people being subjected to sexual abuse and thus other physical, emotional and social complications can arise from such abuse.
Increased access to condoms:
Condoms can be made to be more within the reach of those below 18 years of age through the setting up of Adolescent Friendly Health Clinics (AFHCs) by health professionals who are part of the private medical factor. These clinics would have a role similar to that of the AFHCs that are set up as a part of the Rashtriya Kishor Swasthya Karyakram (RKSK), a programme led by the Ministry of Health and Family Welfare to improve the health of India’s adolescents. Since these would not be controlled by the Government, they would have the autonomy needed to provide effective and non-judgmental sexual and reproductive health services. More adolescents would be able to go to these clinics and get contraceptives like condoms and the clinics would maintain their confidentiality.
No matter where we stand as a society in terms of openness towards and acceptance of sex among adolescents, meaningful sex education in schools will always be of paramount importance. This education should be far from instructing those between 16-18 years of age to not have sex or to not engage in any kind of sexual activity. Rather, it should educate them on the ways in which they can have safe sex and why safe sex is important for their sexual and reproductive health.
Role of social media:
To be able to cultivate healthier attitudes towards adolescents having sex, more of us need to come out on social media and talk about why it is important to put an end to the ways in which society often tries to portray sex as wrong. However, in these present times when pedophiles are lurking in cyberspaces to groom minors, it is highly important that minors are also given the education to discern sexual exploitation as well. Social media is a powerful tool that can be harnessed well to inform, educate and empower the teenagers such that they can make informed choices about their sexual activity. This way more teenagers might be encouraged to overcome any hesitation or fear and buy condoms. Importantly, more and more healthcare providers (pharmacists, doctors at govt. health centres) would develop friendly and non-judgmental attitudes towards teenagers having sex.
Although there are public health programmes in place to make condoms increasingly accessible to the people in this country, legal interventions in the form of a minimum age for consent to sexual activity might make many adolescents below the age of 18 reluctant to buy condoms before having sex. Further, for those who do go to buy condoms, service providers might not sell condoms to them based on their age. The scary part is that all this would not stop those below 18 years of age from having sex. It would only make many of them indulge in unsafe sex.
About the Author: Navya Dawar
She is a second-year student pursuing BBA LLB Honours at Jindal Global Law School, Sonipat, Haryana. She aspires to, one day, be a part of something that helps people believe in themselves and cherish themselves for who they are while simultaneously becoming aware of their own potential for personal growth and exploiting this potential to become better versions of themselves. She loves drinking tea, playing tennis and is fond of working out. She likes to sing and read and aspires to go on long-distance solo hikes at some point in the future.
1^ Population Council. “UDAYA-Understanding the lives of adolescents and young adults:Bihar Factsheet 2016.” popcouncil.org, https://www.popcouncil.org/uploads/pdfs/2017PGY_UDAYA-BiharFactsheet.pdf
2^ UNICEF. “Adolescent development and participation.” unicef.org, 3 June 2019. www.unicef.org/india/what-we-do/adolescent-development-participation