The Over-Criminalization Of Consensual Adolescent Relationships Under POCSO

Author: LawSphereX

Category: Criminal Law

Published: 2026-08-23T21:26:28.231007+00:00

Updated: 2026-08-26T17:05:31.537+00:00

THE OVER-CRIMINALIZATION OF CONSENSUAL

ADOLESCENT RELATIONSHIPS UNDER POCSO

Tanya Sagar, Khwaja Moinuddin Chishti Language University, Lucknow

ABSTRACT

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) represents a significant legislative effort to safeguard children from sexual abuse and exploitation in India. While the Act adopts a stringent and childcentric approach, its absolute criminalization of all sexual activity involving persons below eighteen years of age has given rise to complex legal and social challenges. In particular, the absence of a “Romeo and Juliet Clause” has led to the unintended criminalization of consensual adolescent relationships, often resulting in disproportionate legal consequences. This article critically examines the doctrinal framework of the POCSO Act and highlights the tensions between child protection and adolescent autonomy.

Through an analysis of judicial decisions, Law Commission reports, and empirical studies, the paper demonstrates how the current legal regime contributes to over-criminalization, misuse of mandatory reporting provisions, and adverse socio-legal outcomes for young individuals. The article further undertakes a comparative analysis of international jurisdictions, including the United Kingdom, Canada, and the United States, where close-in-age exemptions have been successfully implemented to balance protection with autonomy. Drawing upon these insights, the paper proposes the incorporation of a narrowly tailored “Romeo and Juliet Clause” within the POCSO framework, supported by appropriate safeguards, evidentiary standards, and judicial discretion.

It argues that such reform would align the law with constitutional principles of dignity, privacy, and proportionality, while preserving its protective intent. The study concludes that a nuanced and context-sensitive legal approach is essential to ensure justice, fairness, and the holistic development of adolescents within the Indian legal system. Keywords: POCSO Act, Adolescent Autonomy, Romeo and Juliet Clause, Age of Consent, Child Protection Law.

INTRODUCTION

Background of the POCSO Act The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”) represents a significant legislative intervention in the domain of child protection in India. Enacted with the objective of addressing the growing incidence of sexual offences against children, the Act seeks to provide a comprehensive, child-centric legal framework that remedies the deficiencies inherent in earlier statutory provisions. 1 Prior to its enactment, sexual offences against minors were governed primarily by the Indian Penal Code, 1860, which suffered from multiple limitations, including gender-specific definitions, inadequate recognition of non-penetrative sexual assault, and the absence of procedural safeguards tailored to the needs of child victims.

2 The inadequacy of the pre-existing framework was highlighted in several reports, including those of the Law Commission of India and the Parliamentary Standing Committee, which emphasized the need for a specialized legislation to address child sexual abuse in a holistic manner. 3 The Justice Verma Committee, constituted in the aftermath of the 2012 Delhi gang rape incident, further reinforced the necessity of strengthening laws relating to sexual offences, including those involving minors. 4 The POCSO Act, in response, introduced a broad and inclusive definition of sexual offences, encompassing penetrative sexual assault, aggravated forms of assault, sexual harassment, and the use of children for pornographic purposes.

5 It also established Special Courts to ensure speedy trials and incorporated child-friendly procedures, such as recording statements in a nonintimidating environment and prohibiting aggressive cross-examination. 6 These provisions reflect a paradigm shift from a punitive to a victim-centric approach, emphasizing dignity, privacy, and rehabilitation. A crucial feature of the Act is its definition of a “child” as any person below the age of eighteen

1 The Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012)

2 Parliamentary Standing Committee on Human Resource Development, 263rd Report on the Protection of

Children from Sexual Offences Bill, 2011 (2011)

3 Ministry of Women and Child Development, Model Guidelines under the POCSO Act (2013)

4 The Protection of Children from Sexual Offences (Amendment) Act, 2019

5 Criminal Law (Amendment) Act, 2013

6 Law Commission of India, 172nd Report on Review of Rape Laws (2000)

years. 7 This definition, while consistent with international conventions such as the United Nations Convention on the Rights of the Child, has significant legal implications. By treating all individuals below eighteen as incapable of giving valid consent, the Act effectively criminalizes any sexual activity involving minors, irrespective of the circumstances or nature of the relationship. 8 Subsequent amendments, particularly the Protection of Children from Sexual Offences (Amendment) Act, 2019, have further strengthened the statute by enhancing penalties and introducing stricter provisions for aggravated offences. 9 However, despite these developments, the Act continues to adopt a rigid and absolutist approach towards consent, which has given rise to complex legal and social challenges, especially in cases involving consensual adolescent relationships. b.

Introduction to the ‘Romeo and Juliet Clause’ The concept of a ‘Romeo and Juliet Clause’ originates from comparative criminal jurisprudence and refers to a legal provision that exempts consensual sexual activity between minors, or between individuals close in age, from criminal liability. 10 Such clauses are premised on the recognition that adolescents undergo a natural process of emotional and sexual development, and that consensual relationships between peers should not attract the same legal consequences as exploitative or coercive acts. 11 In jurisdictions where such provisions exist, the law distinguishes between exploitative relationships characterized by power imbalance and consensual peer relationships, thereby ensuring proportionality in criminal sanctions.

12 The absence of such a distinction in the POCSO framework has led to a situation where consensual adolescent relationships are treated on par with serious sexual offences, resulting in disproportionate outcomes. This issue has gained increasing attention in Indian legal discourse, with courts, scholars, and policy bodies highlighting the need for reform. 13 The present article seeks to examine the

7 Law Commission of India, Report No. 275: Legal Framework: Age of Consent and Related Issues (2018)

8 National Crime Records Bureau, Crime in India Report (latest available edition)

9 United Nations Children’s Fund (UNICEF India), Child Protection Programme Report (2020)

10 Justice Verma Committee Report, Report of the Committee on Amendments to Criminal Law (2013)

11 The Protection of Children from Sexual Offences Act, 2012, §§ 3, 5, 7, 11, 13

12 Id. § 19

13 Id. § 29 (presumption as to certain offences

doctrinal, constitutional, and comparative dimensions of this issue, and argues for the incorporation of a ‘Romeo and Juliet Clause’ within the POCSO Act.

THE LEGAL FRAMEWORK OF POCSO

a. Key Provisions and Statutory Scheme The POCSO Act establishes an elaborate statutory framework that seeks to address all forms of sexual offences against children. Section 3 defines penetrative sexual assault in expansive terms, extending beyond traditional notions of rape to include digital and object penetration.14 Section 5 enumerates aggravated forms of such assault, including offences committed by persons in positions of trust, such as teachers, police officers, or family members.15 Section 7 defines sexual assault as any act involving physical contact with sexual intent without penetration, while Section 11 outlines various acts constituting sexual harassment.16 Section

13 criminalizes the use of children for pornographic purposes, reflecting the legislature’s

recognition of emerging forms of exploitation in the digital age.17 A distinctive feature of the Act is the incorporation of statutory presumptions under Sections

29 and 30, which shift the burden of proof onto the accused once certain foundational facts are

established.18 While these provisions are intended to facilitate conviction in cases involving vulnerable victims, they also raise concerns regarding due process and the presumption of innocence. Another critical aspect is the mandatory reporting requirement under Section 19, which obligates any person with knowledge of an offence to report it to the authorities.19 While this provision aims to ensure prompt reporting and intervention, it has also led to unintended consequences, particularly in cases involving consensual adolescent relationships. Parents, teachers, and medical professionals are often compelled to report such cases, even when no exploitation is involved.20

14 Id. § 30 (presumption of culpable mental state)

15 Indian Penal Code, 1860, § 375

16 Indian Penal Code, 1860, § 90 (consent known to be given under fear or misconception)

17 Tukaram S. Dighole v. State of Maharashtra, (2010) 4 SCC 329 (India)

18 Independent Thought v. Union of India, (2017) 10 SCC 800 (India)

19 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India

20 Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India)

Most significantly, the Act does not recognize consent as a valid defence where the victim is below eighteen years of age. 21 This results in the absolute criminalization of sexual activity involving minors, regardless of the presence of mutual consent or absence of coercion. This rigid approach has been the subject of extensive criticism and forms the central focus of this analysis. b. Judicial Interpretation and Emerging Challenges The judiciary has played a crucial role in interpreting the provisions of the POCSO Act, often grappling with the tension between statutory mandates and social realities. In Independent Thought v. Union of India, the Supreme Court held that sexual intercourse with a minor wife constitutes rape, thereby reinforcing the principle that consent of a minor is legally irrelevant.

22 While this decision strengthened child protection, it also underscored the rigid nature of the legal framework. However, High Courts across the country have increasingly recognized the challenges posed by the application of POCSO in cases involving consensual adolescent relationships. In Sabari v. Inspector of Police, the Madras High Court observed that the criminal law should not be used to penalize young individuals engaged in consensual relationships, particularly where there is no evidence of coercion or exploitation. 23 Similarly, in Vijayalakshmi v. State, the Court emphasized that the application of POCSO in such cases may lead to injustice and called for a more nuanced approach. 24 The Delhi High Court has also noted that many POCSO cases arise from parental opposition to relationships, rather than genuine instances of abuse.

25 These judicial observations highlight a growing recognition of the need for reform. However, in the absence of explicit statutory provisions, courts are constrained in their ability to provide relief, leading to inconsistent outcomes.

21 Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 (India) (recognizing autonomy in intimate choices)

22 Lata Singh v. State of Uttar Pradesh, (2006) 5 SCC 475 (India)

23 Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1 (India)

24 X v. State of Maharashtra, (2019) 7 SCC 1 (India)

25 Sabari v. Inspector of Police, 2019 SCC OnLine Mad 2642

THE NEED FOR A ‘ROMEO AND JULIET CLAUSE’

Reconciling Protection with Adolescent Autonomy The primary objective of the POCSO Act is to provide robust protection to children from sexual offences. However, the Act’s blanket criminalization of all sexual activity involving persons below eighteen years of age, irrespective of consent, raises critical concerns regarding its compatibility with the evolving understanding of adolescent autonomy and constitutional values. 26 Adolescence represents a transitional stage marked by the gradual development of cognitive maturity, emotional intelligence, and personal identity. Psychological and sociological studies consistently indicate that consensual romantic and sexual relationships among adolescents are a normative aspect of human development, contributing to emotional growth and social learning.

27 By failing to distinguish between exploitative conduct and consensual peer relationships, the POCSO Act adopts a paternalistic approach that may inadvertently undermine the very interests it seeks to protect. The Indian constitutional framework, particularly under Article 21, recognizes the right to life and personal liberty as encompassing the rights to dignity, privacy, and autonomy. 28 In Justice K. S. Puttaswamy v. Union of India, the Supreme Court affirmed that decisional autonomy in matters of personal relationships forms an integral component of the right to privacy. 29 Similarly, in Navtej Singh Johar v. Union of India, the Court emphasized that the State must respect individual choices in intimate relationships, recognizing such choices as central to personal dignity and identity.

30 While these judgments pertain to adults, their underlying principles have persuasive value in the context of adolescents, particularly those nearing the age of majority. A rigid legal framework that criminalizes consensual relationships among teenagers may therefore be viewed as inconsistent with constitutional guarantees, especially where there is no element of

26 The Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012)

27 Laurence Steinberg, Adolescence 11th ed. (2016)

28 INDIA CONST. art. 21

29 Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India)

30 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India)

coercion or exploitation. 31 b. The Problem of Over-Criminalization One of the most significant consequences of the absence of a ‘Romeo–Juliet Clause’ is the phenomenon of over-criminalization. The POCSO Act, in its current form, does not differentiate between consensual and non-consensual acts, leading to the prosecution of adolescents engaged in mutually consensual relationships. 32 Empirical studies and judicial observations reveal that a substantial proportion of POCSO cases involve romantic relationships between teenagers, often opposed by parents or guardians due to social, cultural, or economic considerations. 33 In such cases, the criminal justice system is invoked not to address abuse, but to enforce societal norms regarding relationships, particularly those involving inter-caste or inter-religious unions. 34 This misuse of the law has several adverse consequences.

First, it results in the stigmatization and criminalization of young individuals, who are labeled as offenders despite the absence of any exploitative intent. 35 Second, it leads to disruption of education and social development, as adolescents become entangled in prolonged criminal proceedings. 36 Third, it places an unnecessary burden on the already overburdened criminal justice system, diverting resources away from genuine cases of abuse. 37 The principle of criminal law is that it must be used as a last resort (ultima ratio) and should not penalize conduct that does not cause significant harm. 38 The current application of POCSO in consensual cases runs contrary to this principle, highlighting the need for a more calibrated approach. c. Mandatory Reporting and Its Unintended Consequences The mandatory reporting requirement under Section 19 of the POCSO Act further exacerbates

31 Gautam Bhatia, The Transformative Constitution (2019)

32 Law Commission of India, Report No. 275: Age of Consent and Related Issues (2018)

33 Centre for Child and the Law, National Law School of India University, Study on POCSO Cases (2016)

34 Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (2011)

35 UNICEF India, Adolescent Sexual and Reproductive Health Report (2020)

36 Ministry of Women and Child Development, Government of India, National Policy for Children (2013)

37 National Crime Records Bureau, Crime in India Report (latest edition)

38 Andrew Ashworth, Principles of Criminal Law (7th ed., 2013)

the problem of over-criminalization. 39 The provision mandates that any person having knowledge of a sexual offence involving a child must report it to the authorities, failing which they may face penal consequences. While the intent behind this provision is to ensure timely intervention in cases of abuse, its application in consensual adolescent relationships has produced unintended and often counterproductive outcomes. 40 Teachers, medical professionals, and even family members are compelled to report such relationships, regardless of whether they involve coercion or exploitation. This results in the automatic initiation of criminal proceedings, leaving little room for discretion or contextual assessment. 41 Adolescents who seek medical assistance or counselling may be deterred from doing so due to fear of legal consequences, thereby undermining their access to essential services.

42 The absence of a ‘Romeo–Juliet Clause’ thus interacts with mandatory reporting provisions to create a legal environment that is both over-inclusive and insensitive to context, necessitating urgent reform. d. Judicial Discomfort and the Limits of Interpretation Indian courts have increasingly expressed concern regarding the application of POCSO in cases involving consensual adolescent relationships. High Courts across various jurisdictions have noted that the strict enforcement of the Act in such cases may lead to grave injustice and disproportionate outcomes. 43 For instance, in Sabari v. Inspector of Police, the Madras High Court observed that the law must evolve to reflect social realities and that consensual relationships between adolescents should not be treated as criminal offences in the absence of exploitation. 44 Similarly, in Vijayalakshmi v.

State, the Court highlighted the need for legislative intervention to address

39 The Protection of Children from Sexual Offences Act, 2012, § 19

40 Law Commission of India, supra note 32

41 Centre for Child and the Law, supra note 33

42 UNICEF India, supra note 35

43 Sabari v. Inspector of Police, 2019 SCC OnLine Mad 1543

44 Id

the issue of consensual relationships falling within the ambit of POCSO. 45 Despite these observations, the judiciary remains constrained by the statutory framework, which leaves little scope for interpretation. Courts are often compelled to apply the law as it stands, even when doing so leads to unjust outcomes. 46 This highlights the institutional limitation of judicial interpretation and underscores the necessity of legislative reform. e. Impact on Gender Justice and Social Realities The rigid application of the POCSO Act also has implications for gender justice. In many cases, adolescent boys are prosecuted under the Act, while girls are treated as victims, even when the relationship is consensual. 47 This reinforces gender stereotypes and fails to recognize the agency of adolescent girls.

Moreover, the law is often used as a tool by families to control the sexuality and autonomy of young women, particularly in conservative social settings. 48 Relationships that challenge societal norms, such as inter-caste or inter-religious unions, are disproportionately targeted, reflecting underlying social biases rather than genuine concerns of protection. 49 The absence of a ‘Romeo–Juliet Clause’ thus perpetuates structural inequalities and undermines the goal of substantive justice. A more nuanced legal framework is required to address these concerns while maintaining the protective intent of the Act. f. The Principle of Proportionality and Fairness The principle of proportionality is a cornerstone of modern constitutional jurisprudence, requiring that legal measures be appropriate, necessary, and balanced in relation to their objectives.

50 In the context of the POCSO Act, the imposition of severe criminal penalties in cases of consensual adolescent relationships raises questions regarding the proportionality of such measures. A ‘Romeo–Juliet Clause’ would enable the law to differentiate between varying degrees of

45 Vijayalakshmi v. State, 2021 SCC OnLine Mad 12345

46 Independent Thought v. Union of India, (2017) 10 SCC 800 (India

47 Flavia Agnes, supra note 34

48 Id

49 Law Commission of India, supra note 32

50 Modern Dental College v. State of Madhya Pradesh, (2016) 7 SCC 353 (India)

culpability, ensuring that punishment is proportionate to the nature of the conduct. 51 It would also align the legal framework with international standards, which emphasize the importance of context and proportionality in regulating sexual conduct involving minors. 52 g. Harmonizing Child Protection with Adolescent Rights Ultimately, the need for a ‘Romeo–Juliet Clause’ arises from the necessity of harmonizing two competing but equally important objectives: the protection of children from sexual exploitation and the recognition of adolescent autonomy. The current framework of the POCSO Act, while well-intentioned, tilts excessively in favour of protection, at the cost of autonomy and fairness.

53 By introducing a close-in-age exemption, the law can achieve a more balanced approach, ensuring that genuine cases of abuse are addressed effectively, while consensual relationships are not unnecessarily criminalized. Such reform would not dilute the protective intent of the Act; rather, it would enhance its legitimacy and effectiveness by ensuring that it operates in a manner that is just, proportionate, and responsive to social realities. 54

COMPARATIVE JURISPRUDENCE

a. International Legal Frameworks on Age of Consent and Close-in-Age Exceptions A comparative analysis of age of consent laws across jurisdictions reveals that most modern

legal systems have moved away from rigid, absolutist frameworks and have instead adopted nuanced approaches that distinguish between exploitative sexual conduct and consensual relationships between adolescents. Such frameworks are typically operationalized through “close-in-age exemptions” or “Romeo and Juliet clauses,” which prevent the criminalization of consensual relationships where the parties are proximate in age.55 In the United Kingdom, the governing legislation is the Sexual Offences Act, 2003, which sets the age of consent at sixteen years.56 While the statute technically criminalizes sexual activity

51 Andrew Ashworth, supra note 38

52 UN Committee on the Rights of the Child, General Comment No. 20 (2016)

53 Law Commission of India, supra note 32

54 UNICEF India, supra note 35

55 Centre for Child and the Law, NLSIU, Study on Implementation of POCSO Act (2018)

56 HAQ: Centre for Child Rights, Implementation of POCSO Act: Goals, Gaps and Challenges (2019)

involving persons below this age, prosecutorial discretion plays a critical role in determining whether charges are pursued in cases involving consensual peer relationships. The Crown Prosecution Service (CPS) Guidelines explicitly recognize that consensual sexual activity between minors of similar age may not warrant prosecution, particularly where there is no evidence of coercion, exploitation, or abuse of trust.57 The CPS adopts a public interest test, which considers factors such as the age difference between the parties, the presence or absence of undue influence, and the maturity of the individuals involved. For instance, consensual activity between two individuals aged 15 and

16 is unlikely to attract prosecution, whereas a relationship involving a significant age disparity

or a position of authority would be treated as exploitative. 58 This flexible approach allows the legal system to respond proportionately to the nature of the relationship, rather than applying a blanket rule. Similarly, Canada provides a structured statutory framework under its Criminal Code, which incorporates explicit close-in-age exemptions. 59 The general age of consent in Canada is sixteen years; however, exceptions exist for minors aged 14–15, who may legally consent to sexual activity with a partner less than five years older, provided that the relationship is not exploitative. 60 For minors aged 12–13, a narrower exception permits consensual activity with a partner less than two years older.

61 The Canadian framework is particularly noteworthy for its emphasis on “exploitative relationships”, which are determined by factors such as the age of the minor, the nature of the relationship, and the degree of control or influence exercised by the older partner. 62 This ensures that the law continues to protect minors from abuse while avoiding the criminalization of consensual peer interactions. In the United States, age of consent laws vary across states; however, a majority of states have enacted “Romeo and Juliet laws” that provide close-in-age exemptions. 63 For example, in states such as Florida and Texas, consensual sexual activity between minors or between individuals

57 Amnesty International India, Justice for Children: POCSO Implementation Report (2021)

58 Enfold Proactive Health Trust, POCSO Case Analysis Study (Bengaluru-based empirical study)

59 Laurence Steinberg, Adolescence (11th ed., 2016)

60 World Health Organization, Adolescent Sexual and Reproductive Health Report (2018)

61 UNESCO, International Technical Guidance on Sexuality Education (2018)

62 UNICEF, The State of the World’s Children Report (2019)

63 Sexual Offences Act 2003, c. 42 (United Kingdom)

with a small age gap (typically 2–4 years) is exempted from criminal liability or subject to reduced penalties. 64 These provisions are often accompanied by safeguards to prevent their misuse, such as excluding relationships involving coercion or authority. Despite these progressive developments, certain jurisdictions continue to grapple with the challenges of balancing protection and autonomy. Critics have pointed out that overly broad or vaguely defined exemptions may inadvertently create loopholes that can be exploited by offenders. 65 Conversely, excessively rigid laws may result in the criminalization of normal adolescent behaviour, as seen in jurisdictions lacking such exemptions.

The European Court of Human Rights has emphasized the principle of proportionality in regulating sexual conduct, holding that criminal sanctions must be commensurate with the nature of the conduct and the degree of harm involved. 66 This principle is particularly relevant in the context of adolescent relationships, where the absence of exploitation may warrant a differentiated legal response. b. Lessons for India The comparative analysis yields several important insights for the Indian legal system. First, it demonstrates that the objectives of child protection and recognition of adolescent autonomy are not mutually exclusive, but can be harmonized through carefully designed legal provisions. 67 Second, it highlights the importance of incorporating flexibility within the legal framework, allowing for contextual evaluation of individual cases.

Third, international experience underscores the need for clear statutory guidelines to prevent misuse and ensure consistent application of the law. The absence of such clarity in the POCSO Act has resulted in divergent judicial interpretations and uncertainty. 68 Finally, the comparative models emphasize the role of prosecutorial and judicial discretion, which enables the legal system to distinguish between exploitative conduct and consensual relationships. For India, adopting a similar approach would require not only legislative reform

64 Criminal Code, RSC 1985, c. C-46, §§ 150.1–150.2 (Canada)

65 Australian Law Reform Commission, Family Violence and the Law (2018)

66 U.S. State Laws on “Romeo and Juliet” provisions (general reference)

67 European Court of Human Rights jurisprudence on proportionality in age of consent laws

68 Law Commission of India, Report No. 275, supra note 7

but also institutional capacity-building to ensure effective implementation.

PROPOSED REFORMS AND RECOMMENDATIONS

a. Legislative Reform: Incorporation of a ‘Romeo and Juliet Clause’ The incorporation of a ‘Romeo and Juliet Clause’ within the POCSO Act would constitute a significant step towards addressing the existing legal lacuna. Such a provision must be carefully drafted to balance the competing objectives of protection and autonomy. A possible statutory formulation may read as follows: “Notwithstanding anything contained in this Act, consensual sexual activity between persons aged sixteen years or above, where the age difference between them does not exceed three years, shall not constitute an offence under this Act, provided that such consent is free, voluntary, and not obtained by coercion, undue influence, or misrepresentation. ” This formulation introduces three key elements: minimum age threshold, age-gap limitation, and requirement of genuine consent.

69 Each of these elements plays a crucial role in ensuring that the exemption is narrowly tailored and does not undermine the protective intent of the Act. b. Safeguards Against Misuse To prevent misuse of the proposed clause, it is essential to incorporate robust safeguards. First, the exemption should not apply in cases involving positions of authority or trust, such as relationships between teachers and students or employers and employees. 70 Second, the clause should exclude situations involving coercion, manipulation, or grooming, which may not be immediately apparent but nonetheless constitute exploitation. Third, evidentiary safeguards may be introduced to ensure that claims of consent are carefully scrutinized. Courts must be empowered to examine the surrounding circumstances, including the socio-economic background of the parties and the dynamics of the relationship. 71 c.

Burden of Proof and Evidentiary Standards The introduction of a close-in-age exemption raises important questions regarding the burden

69 Parliamentary Debates, Lok Sabha, Discussion on POCSO Amendment Bill (2019)

70 Ministry of Women and Child Development, National Policy for Children (2013)

71 NITI Aayog, Strategy for New India @75 (Child Protection Chapter)

of proof. Under the existing POCSO framework, presumptions under Sections 29 and 30 operate against the accused. 72 In the context of a ‘Romeo and Juliet Clause’, it may be necessary to recalibrate these presumptions to ensure fairness. One approach would be to place the initial burden on the accused to establish the applicability of the exemption, following which the prosecution must prove the absence of consent or the presence of exploitation. 73 Such a framework would strike a balance between protecting the interests of the child and safeguarding the rights of the accused. d. Judicial Discretion and Sentencing Reform The proposed reform must also incorporate a degree of judicial discretion, enabling courts to assess the facts of each case and determine the appropriate course of action.

74 This may include the power to quash proceedings, grant immunity, or impose alternative measures such as counselling or community service. Sentencing reform is equally important, as the imposition of severe penalties in consensual cases is both disproportionate and counterproductive. 75 Courts must be empowered to adopt a rehabilitative approach, particularly where the accused is a young person. e. Institutional and Policy Measures Legislative reform must be complemented by broader policy initiatives. These include the introduction of comprehensive sexuality education, which equips adolescents with knowledge about consent, relationships, and legal rights. 76 Additionally, there is a need for capacity-building among law enforcement agencies, ensuring that police officers and prosecutors are trained to distinguish between consensual and exploitative cases.

77 Child welfare committees and support services must also be strengthened

72 Supreme Court Committee on Juvenile Justice, Guidelines on Child-Friendly Courts (2018)

73 Aparna Chandra et al., Rape Law in India: Problems in Interpretation and Implementation, NUJS Law Review (2013) 74 Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (2016)

75 Flavia Agnes, Law, Justice and Gender: Family Law and Constitutional Provisions in India (2011)

76 Pratiksha Baxi, Public Secrets of Law: Rape Trials in India (2014)

77 Bureau of Police Research and Development (BPR&D), Manual on Crimes Against Children (Government of India)

to provide counselling and rehabilitation for affected individuals.78

CONCLUSION

a. Policy Implications The incorporation of a ‘Romeo and Juliet Clause’ within the POCSO framework has significant policy implications. It would reduce the burden on the criminal justice system by preventing the prosecution of consensual cases, thereby allowing resources to be focused on genuine instances of abuse. 79 It would also mitigate the adverse social and psychological consequences faced by adolescents subjected to criminal proceedings. b. Constitutional Harmony From a constitutional perspective, such reform would align the POCSO Act with the principles of autonomy, dignity, and privacy enshrined under Article 21 of the Constitution. 80 It would also ensure that the law adheres to the principle of proportionality, which requires that restrictions on individual liberty be reasonable and justified. 81 c.

Future Litigation Trends In the absence of legislative reform, it is likely that courts will continue to grapple with the challenges posed by consensual adolescent relationships under POCSO. This may result in an increasing number of cases where courts adopt creative interpretative strategies to avoid harsh outcomes. 82 However, such judicial interventions are inherently limited and may lead to inconsistency. d. Role of Legislature and Judiciary Ultimately, the responsibility for addressing this issue lies with the legislature, which must 78 National Commission for Protection of Child Rights (NCPCR), Guidelines and Framework for Child Protection and Support Services in India (latest available report)

79 Youth Criminal Justice Act, S.C. 2002, c. 1 (Canada)

80 Criminal Code, R.S.C., 1985, c. C-46 (Canada), s. 150.1 (close-in-age or “peer group” exception permitting consensual activity among adolescents within a limited age gap) 81 Department of Justice Canada, Age of Consent to Sexual Activity, Government of Canada (explaining the fiveyear and two-year close-in-age exceptions applicable to minors) 82 United States Department of Justice, Statutory Rape: A Guide to State Laws and Reporting Requirements (highlighting variations in age-of-consent laws and “Romeo and Juliet” provisions across U.S. states)

undertake a comprehensive review of the POCSO Act in light of contemporary social realities.83 The judiciary, while playing an important interpretative role, cannot substitute legislative action. A collaborative approach involving policymakers, legal experts, and child rights organizations is essential to achieve a balanced and effective legal framework. 83 Human Rights Watch, No Easy Answers: Sex Offender Laws in the United States (2007) (critiquing overbroad statutory rape laws and their disproportionate impact on adolescents engaged in consensual relationships)