On Friday (January 9), while setting aside an Allahabad High Court order regarding age determination procedures in a bail matter, the Supreme Court urged the Union Law Secretary to consider initiating steps to curb the misuse of the Protection of Children from Sexual Offences (POCSO) Act, 2012.Specifically, the bench comprising Justices Sanjay Karol and N Kotiswar Singh recommended the introduction of a “Romeo-Juliet clause” to exempt genuine adolescent relationships from the law designed to punish child sexual abuse.The clause, named after the young characters from the Shakespeare play of the same name, essentially protects consensual sexual activity among teens who are close to each other in age, exempting them from prosecution for statutory rape. It exists in different forms in countries such as the US.This observation came at a time when a PIL where the age of consent has emerged as a point of contention is already pending before the court. The Supreme Court’s observation highlights a growing judicial discomfort with the criminalisation of consensual sexual acts between minors.Protection vs autonomyUnder the POCSO Act, a child is defined as any person below the age of 18. The Act does not recognise a minor’s consent to sexual acts. So, any sexual activity involving a person under 18 is automatically criminalised, regardless of whether it is consensual or non-exploitative.In its judgment Friday, the Supreme Court noted that while POCSO is a “solemn articulation of justice”, its misuse has created a “grim societal chasm”. The court pointed out that the Act is frequently used by families to oppose relationships between young people.Demand for changeThe push to amend the law is not new but it has gained a boost through a pending PIL in the Supreme Court related to protections and safeguards for women in the prosecution of sexual offences. In this matter, Senior Advocate Indira Jaising, assisting the court as amicus curiae, has advocated for reading down the age of consent or introducing exceptions.Story continues below this adAlso Read | A ‘Romeo-Juliet’ clause in POCSO may be needed to prevent over-criminalisation of behaviour that is developmentally typicalIn her written submissions filed last year, Jaising argued that the current blanket criminalisation violated the fundamental rights of adolescents under Articles 14, 15, 19, and 21 of the Constitution. She contended that adolescents between the ages of 16 and 18 possess the “evolving capacity” to make decisions regarding their sexual autonomy. Citing the “mature minor” doctrine from common law, she argued that treating all those under 18 as incapable of consent ignored scientific reality and the biological onset of puberty.Jaising proposed a “close-in-age” exception. This legal mechanism would ensure that if both parties are adolescents — for example, a 16-year-old and a 17-year-old — and the act is consensual, it would not be treated as an offence. This would prevent the incarceration of young boys under the POCSO Act for relationships devoid of coercion.Government’s stand for status quoThe Union government has opposed any reduction in the age of consent or the introduction of legislative exceptions. In its submissions before the court in the matter, the government argued that the age of 18 is a “deliberate, well-considered” legislative choice aimed at creating a non-negotiable “protective shield” for children.Story continues below this adThe government contended that minors lack the legal and developmental capacity to give meaningful consent. A strict liability framework — where consent is irrelevant — was necessary, it argued, because children are vulnerable to manipulation and coercion by adults in positions of trust. The government expressed fear that introducing exceptions or lowering the age of consent could open loopholes for child abuse and trafficking under the guise of consensual relationships.Also Read | A blanket reduction of the age of consent won’t make vulnerable girls any saferSince the Act was enacted to remedy the specific mischief of child abuse, diluting the age threshold, it argued, would reintroduce the very problem the law sought to solve.It submitted that judicial discretion should remain a case-by-case exercise rather than a statutory dilution.Story continues below this adIn 2023, too, the Law Commission of India advised against lowering the age of consent to 16. But it did acknowledge the issue, suggesting the introduction of guided judicial discretion in sentencing for cases involving tacit approval from children aged 16 to 18, rather than a full statutory exception.What the data saysThe judicial anxiety regarding the POCSO Act is backed by empirical data. A study by the Enfold Proactive Health Trust and UNICEF found that nearly 25% of POCSO cases in the states of Maharashtra, Assam and West Bengal between 2016 and 2020 were “romantic” in nature — in which the victim and the accused were in a consensual relationship.Also Read | POCSO and age of consent debate in India: Debunking the misconceptionsThe data reveals a pattern of families often misusing the Act to regulate the autonomy of their daughters. In such cases, parents file kidnapping and rape charges against a young boy their daughter may have eloped with — often due to it being an inter-caste or inter-religious relationship. The conviction rate in such cases is low because the “victims” often testify in favour of the accused during the trial.Story continues below this adThe criminalisation of adolescent sexuality also has health implications. As Jaising noted in her submissions, the mandatory reporting provision in POCSO forces doctors to report underage pregnancies or sexual activity to the police. This fear of prosecution deters adolescents from seeking essential sexual and reproductive health services.Judicial discretion inadequateCurrently, courts across India have been navigating this grey area through discretion. Various High Courts have, over the years, quashed criminal proceedings in romantic cases, noting that the purpose of the POCSO Act was not to punish teenage love. But by then, the accused boy has often spent months or years in custody.Friday’s Supreme Court judgment signalled that the criminalisation of adolescent sexuality requires a structural, rather than just a judicial, solution. As the judgment noted, when a law meant to protect children becomes “a tool for exacting revenge, the notion of justice itself teeters on the edge of inversion”.