Contents
Introduction
Enacted in 2012, POCSO’s strict liability regime faces judicial re-examination as NCRB data, UNICEF studies and constitutional jurisprudence reveal tensions between child protection, adolescent autonomy and proportional criminal justice.
Judicial Rationale for a ‘Romeo-Juliet’ Exception
- The Supreme Court’s January 2026 observations reflect a growing discomfort with the bright-line approach of the POCSO Act, which criminalises all sexual activity below 18 irrespective of consent. While POCSO was designed as a beneficial legislation to combat child sexual abuse, judicial experience reveals systematic over-criminalisation of consensual adolescent relationships.
- The Court noted that a significant number of cases involve ‘romantic’ or ‘elopement’ situations where families invoke POCSO to discipline daughters or oppose inter-caste and inter-religious relationships. Empirical backing comes from a UNICEF–Enfold Proactive Health Trust study (2016–2020), which found nearly 25% of POCSO cases in Maharashtra, Assam and West Bengal to be consensual in nature, with low conviction rates due to victims supporting the accused.
- The proposed ‘Romeo-Juliet’ or close-in-age exception draws from comparative jurisprudence in the US and Europe, where consensual acts between adolescents with minimal age gaps are excluded from statutory rape laws. The Court implicitly relied on the mature minor doctrine, recognising adolescents’ ‘evolving capacities’—a concept endorsed by the UN Convention on the Rights of the Child (CRC), to which India is a signatory.
Socio-Legal Tensions: Protection vs Autonomy
- At the heart of the debate lies a constitutional tension between parens patriae protection and individual autonomy. On one hand, the Union government argues that the age of consent at 18 constitutes a non-negotiable ‘protective shield’, essential to prevent grooming, trafficking and coercion, particularly in patriarchal social contexts. The Law Commission of India (283rd Report, 2023) echoed this caution, warning against statutory dilution.
- On the other hand, criminalising consensual adolescent sexuality raises serious concerns under Articles 14, 15, 19 and 21. In Justice K.S. Puttaswamy v. Union of India (2017), the Supreme Court affirmed bodily autonomy and decisional privacy as intrinsic to dignity. Treating all adolescents as incapable of consent ignores biological maturity, psychological development and social realities.
- The mandatory reporting clause under POCSO further exacerbates harm. As highlighted in public health literature and WHO adolescent health frameworks, fear of prosecution deters minors from accessing reproductive and mental-health services, leading to unsafe abortions and untreated trauma—outcomes antithetical to the ‘best interests of the child’ principle.
Limits of Judicial Discretion and the Need for Structural Reform
- High Courts have attempted corrective justice by quashing proceedings in romantic cases, but only after prolonged incarceration, social stigma and educational disruption. This underscores the inadequacy of ex post judicial discretion within a rigid statutory framework.
- A calibrated response lies in legislative refinement rather than dilution: a statutory safe-harbour clause for consensual acts between minors aged 16–18 with narrow age gaps; graded sentencing as suggested by the Law Commission; and diversionary approaches such as counselling instead of incarceration. Complementing legal reform with Comprehensive Sexuality Education (as recommended by UNESCO) would shift governance from moral policing to informed consent.
Conclusion
As Justice D.Y. Chandrachud observed, constitutional morality must temper criminal law; refining POCSO through proportionality ensures child protection without criminalising adolescence itself, preserving justice, dignity and social trust.
