Why in the News?

The Protection of Children from Sexual Offences (POCSO) Act, 2012 is under scrutiny as the Supreme Court examines whether consensual sex between adolescents aged 16–18 should be decriminalised.

How does criminalising adolescent consent affect justice?

• Unjust Persecution of Consensual Relationships: Criminalising consensual sex between adolescents aged 16–18 leads to misuse of the law and unnecessary criminal prosecution of young people in voluntary relationships. Eg: Courts noticed that teenagers were being treated as offenders rather than being protected, which runs counter to the protective intent of the POCSO Act.
• Denial of Sexual Autonomy: Adolescents are deprived of agency over their own consensual decisions, equating normal behaviour with sexual offences. Eg: Section 2(d) of POCSO defines any person under 18 as a child, hence their consent is legally irrelevant.

What legal basis supports an exception for 16–18-year-olds?

• Evolving Capacity of Adolescents: The UN Convention on the Rights of the Child (UNCRC), to which India is a signatory, recognises that adolescents have evolving capacities. Eg: International norms suggest that children above 16 may have sufficient maturity to make informed decisions, including about consensual relationships.
• Madras High Court (Vijayalakshmi vs. State, 2021): The court observed that consensual relationships among adolescents should not be criminalised when the age difference is modest (within 5 years). Eg: A 17-year-old girl and her 19-year-old partner in a consensual relationship were seen as victims of misuse of POCSO.
• Amicus Curiae Submissions to the Supreme Court (2024): Senior Advocate Indira Jaising suggested reading an exception into the POCSO Act to decriminalise consensual sexbetween adolescents aged 16–18. Eg: She argued that consent between sexually mature adolescents should not be labelled as abuse under law.
• Law Commission of India Report (2023): While not favouring a change in the age of consent, the Commission recommended “guided judicial discretion” in cases involving 16–18-year-olds in consensual relationships. Eg: Judges may consider the consensual nature while deciding on punishment, avoiding harsh sentences for adolescent partners.

Note:  Amicus Curiae is a Latin term meaning “friend of the court.” It refers to a person or organization not a party to the case, but who offers relevant information, expertise, or insight to assist the court in making its decision.

Case Study: 

• United Kingdom – “Gillick Competence” Doctrine: The UK follows the principle of Gillick competence, where children under 16 can legally consent to medical treatment (including sexual health services) if they are mature enough to understand the consequences. The Sexual Offences Act 2003 criminalises sex under 16, but the law is applied with discretion, especially in mutual consensual relationships between teenagers close in age.

• Canada – Close-in-Age Exemption: Under Canada’s Criminal Code, the age of consent is 16, but there is a “close-in-age exemption”. Eg: A 14–15-year-old can legally consent to sex with a partner less than 5 years older if the relationship is not exploitative. This balances protection from abuse with recognition of adolescent development and autonomy.

Way forward: 

• Legislative Clarity with Close-in-Age Exemption: Amend the POCSO Act to introduce a close-in-age exemption (e.g., age difference ≤5 years) for consensual adolescent relationships between 16–18 years, as suggested by courts like the Madras High Court. This ensures protection from exploitation while avoiding unjust criminalisation.
• Comprehensive Adolescent Legal Awareness Programs: Launch school-based sensitisation campaigns to educate teenagers on consent, law, rights, and consequences of sexual activity. This promotes informed decision-making and reduces misuse or misunderstanding of the law.

Mains PYQ:

[UPSC 2023] The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a constitution made for a progressive society”. Illustrate with special reference to the expanding horizons of the right to life and personal liberty.

Linkage: The debate surrounding the POCSO Act and the age of consent for consensual adolescent relationships directly exemplifies how legal frameworks, and indeed the Constitution, must adapt to the realities of a “progressive society”. The call for exemptions or caveats to the POCSO Act, especially when “normal adolescent behaviour” is criminalized.

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