Adv. Shraddha Sunil

In a significant constitutional moment, the Supreme Court of India recently acknowledged an uncomfortable truth: laws enacted to protect children from sexual exploitation are increasingly being weaponised to criminalise consensual adolescent relationships. While setting aside a series of directions issued by the Allahabad High Court in a bail matter under the Protection of Children from Sexual Offences Act, 2012 (POCSO), the court observed that the statute, in its present form, often fails to distinguish between predatory sexual abuse and consensual intimacy between teenagers.

In a rare and candid judicial reflection, the Court urged the Union Government to consider introducing a “Romeo-Juliet clause”- a statutory carve-out that would protect adolescents engaged in consensual relationships from the full force of criminal prosecution. The remark is not merely advisory. It is rooted in years of litigation revealing a disturbing pattern: POCSO prosecutions are initiated not to protect children, but to discipline choice, sexuality, and autonomy, especially of young girls.

This article examines the issue through the lens of constitutional litigation, situating the Supreme Court’s observation within broader debates on Article 21, bodily autonomy, privacy, dignity, proportionality, and the evolving jurisprudence on childhood and consent. It also interrogates the structural failures of the criminal justice system that allow parental anxiety, caste bias, and moral panic to drive prosecutions under a law meant to shield children from harm.

The POCSO Framework: Absolute Liability and the Erasure of Consent

The POCSO Act was enacted in 2012 to address a glaring gap in Indian criminal law: the absence of a child- centric, victim-friendly framework to deal with sexual offences against minors. The Act criminalises all sexual activity involving persons below 18 years of age, adopting a regime of strict liability where consent is legally irrelevant.

Sections 3 to 10 of the Act define a wide spectrum of offences from penetrative sexual assault to sexual harassment without distinguishing between exploitative acts and consensual intimacy. This legislative choice was premised on the assumption that minors lack the capacity to give meaningful consent, an assumption consistent with international child- protection norms.

However, what the statue did not anticipate or rather failed to address is the lived realities of adolescents: a phase marked by emotional exploration, romantic attachment, sexual curiosity. The law’s absolutism collapses these realities into criminality, producing outcomes that are punitive rather than protective.

Litigation Patterns: From Protection to Policing of Choice

A. Empirical studies and judicial records reveal a recurring pattern where the complainant is often a parent or guardian, not the adolescent. The accused is typically a young man aged 18-21, barely above the statutory threshold. The “victim” frequently refuses to support the prosecution, asserting consent. FIRs are triggered after elopement, Inter-caste or inter- religious relationships, or refusal of arranged marriage.

Across India particularly in Uttar Pradesh, Madhya Pradesh, Rajasthan, and Bihar have repeatedly encountered cases where POCSO is used as a tool of social control, not child protection.

B. It was against this backdrop that the Allahabad High Court, in a bail matter under POCSO, issued a series of general directions that effectively cemented the approach toward such cases. These directions, framed without legislative backing, narrowed judicial discretion and risked mechanical denial of bail, even where the relationship was consensual and the prosecutrix opposed incarceration of the accused. The Supreme Court intervened, setting aside these directions and cautioning against judicial law- making that ignores constitutional nuance. In doing so, the Court reaffirmed that bail jurisprudence must remain sensitive to context, proportional, and fundamental rights.

The Supreme Court’s observations: A Constitutional Inflection Point

The Supreme Court’s remark on the need for a Romeo- Juliet clause is jurisprudentially significant for three reasons:

It acknowledges systemic misuse, rather than treating such cases as aberrations. It recognises consensual adolescent relationships as constitutionally relevant. It invites legislative correction, signalling the limits of judicial patchwork.

The Court explicitly noted that harsh criminal consequences under POCSO can devastate the future of young people, branding them as sex offenders and subjecting them to prolonged incarceration even before trial. Such outcomes, the Court suggested, are disproportionate and constitutionally suspect.

What is a Romeo- Juliet Clause?

A Romeo- Juliet clause is a close-in-age exemption that decriminalises consensual sexual activity between minors, or between a minor and a young adult, provided:

• The age difference falls within a prescribed range (often 2-4 years),

• The relationship is demonstrably consensual,

• There is no element of coercion, exploitation, or abuse of authority.

Such clauses exist in multiple jurisdictions, including Canada, several U.S. states, and parts of Europe, reflecting an understanding that criminal law must distinguish exploitation from exploration.

Why India Needs One?

India’s demographic reality where adolescence often overlaps with early adulthood makes rigid age-of-consent enforcement particularly harsh. The absence of a Romeo- Juliet clause means:

• Teenage girls are legally infantilised, even when exercising agency.

• Young men are subjected to mandatory minimum sentences under POCSO.

• The criminal justice system becomes a site of moral policing, not rights protection.

Article 21: Dignity, Autonomy, and the Right to Grow up

The Supreme Court’s post- Puttaswamy jurisprudence had firmly established that privacy, bodily autonomy, and decisional freedom are integral to Article 21. Adolescents, though minors, are not devoid of these rights.

Criminalising consensual adolescent intimacy sits uneasily with this trajectory. It treats young people as objects of protection rather than subjects of rights, denying them agency while imposing lifelong stigma.

Article 14: Arbitrariness and Over- Inclusiveness

POCSO’s blanket criminalisation creates over- inclusive classifications, capturing both exploitative abuse and consensual relationships within the same penal net. This raises serious concerns under Article 14, as the law fails the test of reasonable classification and proportionality.

The Supreme Court has repeatedly held that laws which are manifestly arbitrary violate Article 14. Applying the same punitive framework to a trafficker and a teenage boyfriend is a textbook case of such arbitrariness.

Article 19: Expression, Association, and Choice

Romantic relationships are a form of personal association and expression. While reasonable restrictions are permissible, criminal prosecution for consensual intimacy without harm cannot be justified as a proportionate restriction in a constitutional democracy.

Bail Jurisprudence and Pre- Trial Punishment

One of the gravest consequences of POCSO misuse lies in pre-trial incarceration. Given the Act’s stringent bail conditions and social stigma, accused persons often spend years in jail before acquittal, even when the prosecutrix turns hostile or supports the relationship.

The Supreme Court’s call for a Romeo- Juliet clause is thus a recognition of institutional limits. Without legislative amendment:

• Police will continue to register FIRs mechanically.

• Trial courts will continue to frame charges.

• Adolescents will continue to suffer irreversible harm.

Is Reimagining Child Protection the way forward?

A rights respecting reform agenda must include intense scrutiny and judgement such as

• statutory close-in- age exemptions under POCSO.

• Clear guidance distinguishing consensual relationships from abuse

• Mandatory child- centric assessments, not parental morality.

• Training for police and prosecutors on adolescent rights.

• Strong safeguards against fake or coercive complaints.

Such reforms would not dilute child protection; they would restore its legitimacy.

The Supreme Court’s recent observations mark a pivotal moment in India’s constitutional journey. By acknowledging the misuse of POCSO and calling for a Romeo- Juliet clause, the Court has signalled that child protection cannot come at the cost of autonomy, dignity, and proportionality.

The challenge now lies with the legislature. If the Parliament fails to act, the criminal justice system will continue to punish adolescence under the guise of protection. In a constitutional democracy committed to human dignity, that is a price too high to pay.

The law must protect children from harm but it must also protect them from the law itself when it becomes an instruments of injustice.

About the Author:

Shraddha Sunil is a legal researcher and advocate deeply committed to advancing human rights and constitutional justice in India. She holds an LL.M. in Human Rights, where her dissertation examined India’s inconsistency with its treaty obligations under CEDAW, focusing on the non-criminalisation of marital rape and the State’s positive obligations under international law. Her academic and professional work reflects a strong intersectional approach, engaging with issues of gender, surveillance, and digital rights.

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