Supreme Court Emphasizes ‘Romeo–Juliet’ Exception in the POCSO Act

• The Supreme Court of India has recently urged the Union Law Secretary to consider measures to prevent the misuse of the Protection of Children from Sexual Offences (POCSO) Act, 2012, especially in cases involving consensual relationships between adolescents.
• This observation came while setting aside an order of the Allahabad High Court related to age determination in a bail matter.
• The Court recommended exploring the introduction of a “Romeo–Juliet Clause,” which would provide exemption from criminal prosecution for consensual sexual acts between adolescents of a similar age.
• This approach is in line with practices adopted in several countries, including the United States, and reflects growing judicial concern over the excessive criminalization of consensual acts involving minors under the existing POCSO framework.

POCSO Act and Its Challenges
POCSO Act, 2012 (Protection of Children from Sexual Offences Act, 2012)

• The POCSO Act, 2012 aims to protect children (below 18 years of age) from sexual offences.
• It provides a comprehensive legal framework in India to address child sexual abuse, sexual exploitation, and other sexual crimes against children.

Key Features:

1. Applicability:-The Act applies to the entire territory of India.
2. Protected Persons:-All children below 18 years of age, both boys and girls, are protected under this law.
3. Definition of Offences:-The Act covers offences such as sexual assault, sexual harassment, child abuse, and the use of children in pornography.
4. Special Judicial Provisions:
   • Establishment of Special Courts for speedy trials in the best interest of the child.
   • Protection of the child’s dignity and confidentiality during court proceedings.
5. Mandatory Reporting:
   • Any person who has knowledge of a sexual offence against a child is legally bound to report it to the police.
6. Punishment:
   • Imprisonment and fines depending on the severity of the offence.
   • Some offences may attract punishment up to life imprisonment.
7. Digital and Pornography Offences:
   • Creation, sharing, or storage of obscene images or videos involving children is punishable.
8. Rights of the Victim:
   • Hearings in a safe and child-friendly environment.
   •  Attention to the psychological well-being of the child.

Significance:

• The Act ensures prompt and strict action in cases of child sexual abuse.
• It helps reduce crimes against children and enhances their safety in society.

Misuse and Unintended Consequences:

• Families often invoke POCSO in cases of inter-caste, inter-religious relationships or elopement, leading to excessive criminalization.
• A study by Enfold Proactive Health Trust and UNICEF (2016–2020, Maharashtra, Assam, West Bengal) found that around 25% of POCSO cases involved consensual “romantic” relationships between adolescents.
• Public Health Impact: Fear of prosecution discourages minors from accessing essential sexual and reproductive health services, increasing risks such as unsafe abortions.
• Judicial Observation: The Supreme Court has described POCSO as a “serious expression of justice” for child protection, but has also termed its misuse a “serious social fault line” that undermines adolescents’ autonomy.

Constitutional Framework and the “Mature Minor” Doctrine

• This debate essentially highlights the tension between the State’s role as parens patriae (guardian of citizens) and the personal liberty and autonomy of adolescents.
• The existing law denies the decision-making capacity of adolescents aged 16–18 and creates a form of “legal fiction,” which does not align with scientific evidence and social realities.
• Senior Advocate Indira Jaising has raised the following major constitutional objections:

Violation of Fundamental Rights

• The present framework potentially violates:
  

– Article 14 (Right to Equality)
– Article 15 (Prohibition of Discrimination)
– Article 19 (Freedom and Personal Liberty)
– Article 21 (Right to Life, Dignity, and Autonomy)

• This is because the law treats adolescent consent as completely invalid, irrespective of maturity and circumstances.

“Evolving Capacity” Principle

• Adolescents aged 16–18 possess a gradually developing capacity to make informed decisions.
• Ignoring biological realities of puberty contradicts modern medical and psychological understanding.

“Mature Minor” Doctrine

• • In common law, this doctrine recognizes that sufficiently mature minors can make certain important decisions independently.
• • The current POCSO framework sacrifices individual dignity in the name of legal certainty.
• • These constitutional arguments point toward the need for alternative legislative solutions.

Key Developments and Arguments for Reform

Recent Observations of the Supreme Court

• In a pending PIL on the age of consent, the Court emphasized the need for a structural legislative solution, rather than relying on case-by-case judicial discretion.
• The Court recommended a “close-in-age” or “Romeo–Juliet” exception, under which consensual acts between adolescents of similar age (e.g., 16–17 years) and with a minimal age gap (generally 2–4 years) would be exempt from criminal liability.
• Such a reform would help prevent violations of fundamental rights under Articles 14, 15, 19, and 21.

Arguments in Favour of Reform

• Evolving Capacity Principle: Adolescents aged 16–18 have the cognitive and emotional capacity to make informed decisions about sexual autonomy, supported by scientific evidence on puberty and maturity.
• Mature Minor Doctrine: Common law recognizes that not all persons below 18 are incapable of giving meaningful consent; a blanket prohibition ignores biological and social realities.
• Reducing Misuse: Reform would prevent POCSO from being misused by families as a tool of retaliation or social control.
• International Practices:

– United States: Romeo–Juliet laws in many states
– United Kingdom: Age of consent at 16 with safeguards
– Canada: Close-in-age exemptions

Momentum for Reform

• Amendments have been sought through PILs, including protective safeguards for women during prosecution.
• Law Commission of India (2023 Report): Advised against lowering the age of consent to 16, but recommended guided judicial discretion in sentencing for consensual cases involving 16–18-year-olds.

Union Government’s Position: Arguments for Retaining the Current Law

Maintaining Status Quo

• Retaining the age of consent at 18 is a deliberate policy choice to provide a “complete protective shield” for children.
• Minors lack sufficient legal and developmental capacity to give meaningful consent and are vulnerable to manipulation by adults or persons in positions of authority.

Concerns Regarding Exceptions

• Exceptions may create loopholes that allow exploitation, trafficking, or coercion to be disguised as consensual relationships.
• Lowering or diluting the threshold could revive the same problems the law was enacted to prevent.
• Preference for Judicial Discretion: Relief in hard cases should come through case-by-case judicial decisions rather than weakening statutory safeguards.
• Law Commission’s Caution: Broad exceptions may dilute the strict liability framework of the POCSO Act.

Analysis: Balancing Child Protection and Adolescent Autonomy

Advantages of the Romeo–Juliet Exception

• Reducing Over-Criminalization: It would reduce excessive criminalization and align with juvenile justice principles, such as recognition of maturity under the Juvenile Justice Act.
• Promoting Equality:It would prevent the disproportionate impact on marginalized youth, especially in inter-community relationships.
• Public Health Benefits:It would improve access to counseling and healthcare services without fear of prosecution.
• Constitutional Compatibility:It would uphold the rights to privacy and dignity (as recognized in Justice K.S. Puttaswamy v. Union of India, 2017).

Drawbacks and Risks

• Possibility of Misuse:Predators may exploit age gaps or falsely claim “consent” to escape liability.
• Enforcement Challenges:Determining genuine consent could place additional pressure on judicial and investigative resources.
• Social Context Concerns:Given India’s high incidence of child marriage and gender inequality, reducing protections may increase vulnerability.
• Data Gaps:Nationwide empirical studies are required beyond limited state-level data.

Broader Implications

• Linkage with Other Laws:Section 375 of the Indian Penal Code (IPC) also sets the age of consent at 18; reforms must ensure legal consistency.
• Global Comparison:India’s strict approach differs from many European countries (where the age of consent ranges from 14–16), but reflects its unique socio-cultural context.

 Way Forward:-A hybrid model may be adopted — statutory exceptions with safeguards (such as mandatory counseling) combined with stronger sexual education in schools.