[This Article has been authored by Avantika Kakran, a penultimate year student at Dr. Ram Manohar Lohiya National Law University, Lucknow.]

Introduction

In a recent ruling, the Supreme Court has suggested bringing a Romeo-Juliet clause into the Protection of Children from Sexual Offences Act, 2012 (The act) to exempt adolescents who engage in consensual sexual relationships from stringent punishment under the act. The suggestion comes in the backdrop of an increasing number of cases where the provisions of the act have been misused/exploited, primarily by families, to regulate genuine consensual relationships between adolescents. 

In recent years, there have been constant efforts to decriminalize consensual sexual relationships specially between two consenting minors. Many recommend lowering the age of consent (“AOC”) to 16 years as it existed before the 2013 amendment drawing parallels with foreign legislations where the AOC is set to 16 years with a “close-in age exception” or a “Romeo-Juliet clause”. However, many child protection advocates, policymakers and the government argue for retaining the AOC at 18 without any exceptions citing adolescent vulnerability, psychological harm and societal norms that warrant protection.

The author critically examines the consequences of the current AOC, judicial responses to consensual adolescent relationships, international framework on AOC and proposes a balanced, contextually tailored approach to protect adolescents while respecting their autonomy. 

Why the Current Legislative Framework Fails?

At present, the AOC in India is set at 18 years. In a society where a considerable proportion of adolescents are sexually active, the current legal framework on the AOC fails to consider that a connection between two minors can purely be based on mutual innocence and biological desire. Additionally, criminalizing such a connection conflicts with their constitutional rights and bodily autonomy since reproductive autonomy, bodily integrity, sexual freedom and other rights vital to a life with dignity are protected as facets of the right to life under Article 21 of the Constitution.

In recent years, both High Courts and POCSO Special Courts have expressed increasing concern over minors being prosecuted for consensual sexual relationships stemming from romantic relationships between the victim and the accused. The Madras High Court, in particular, has repeatedly emphasized the requirement to revisit the current legal framework related to the AOC. It has consistently advocated that the AOC be lowered from 18 to 16 years and that consensual relationships between persons over 16 years of age be taken out of the ambit of the Act’s rigorous penal provisions.

Even with such forward-looking suggestions, judicial trends have been far from uniform. In some judgments, courts have gone back on this reformist approach, taking the position categorically that the penalty under the POCSO Act is attracted irrespective of whether the sexual encounter was consensual or not.

This dilemma has also reached the Supreme Court. In a recent judgment, the SC took into consideration the agony and mental trauma the victim had already undergone and might further go through if the accused is sent to jail. Although it recognized its lack of statutory authority to minimize the punishment, the court invoked its extraordinary power under Article 142 and refrained from sentencing the accused. The ruling explicitly declared that it would not set a precedent, exposing the judiciary’s limited power to bridge legislative gaps.

The common thread that runs through the approaches taken by the High Court and the Supreme Court is balancing criminalization with protection. Even though the courts have recognised the overprotection under POCSO, they have been constrained by an absence of statutory exceptions. Therefore, it may be helpful to look at how other jurisdictions have dealt with this conundrum. 

International Framework vis-à-vis Age of Consent

The international framework on AOC varies across jurisdictions. Most jurisdictions typically establish an AOC, most commonly 16 years, while providing for close-in age exceptions or a Romeo-Juliet clause. For Eg, in Canada, the AOC is set at 16 years with a close-in age exception u/s 150.1(2.1) if the complainant is not below 14 years of age and the accused is less than 5 years older, is not in a position of trust or authority, and the relationship is non exploitative. 

In USA, however, AOC is different across states, depending on the specific State laws. For eg, as per Section 2C:14-2 of the New Jersey Code of Criminal Justice, the AOC is 16, but there is an exception which allows individuals who are 13 years of age (which is the minimum age requirement) to legally engage in sexual activities if the accused is less than 4 years older than the victim. Similarly, in Washington, sexual intercourse with someone who is 14 years of age or more but under 16 years of age is legal if the defendant is not 4 or more years older than the victim. 

Legislative analysis of New Jersey’s laws

Earlier the AOC laws in New jersey were criticized by reform activists and women’s lobby groups. They argued that an increased AOC criminalized consensual sexual activities and such extensive coverage lessened the seriousness of non-consensual rape cases involving force, coercion, or lack of consent. Additionally, it was contended that the law should focus on the element of force or coercion rather than criminalizing all underage sexual activity in a similar manner. 

The 1978 reform in the New Jersey’s Penal Code therefore balanced safeguarding minors against penalization of consensual sexual activities, focusing criminal prosecution instead on exploitative or forced encounters. Thus, in lack of uniformity in the judicial decisions in India, a similar legislative approach warrants consideration within the Indian law, as similar consequences follow under its current AOC laws. 

Suggestions and Conclusion

While several experts and activists argue that the definition of “child” under the POCSO shall be amended to bring down the AOC to 16 years, the author suggests retaining the existing definition to bring all children below 18 years of age under the protective umbrella of POCSO. Children in the age group of 16 to 18 years are more vulnerable to grooming and manipulation. Therefore, a blanket decriminalization by reducing the AOC to 16 years may inadvertently enable accused persons to evade liability even in cases where there existed no consent.

According to the suggested framework, the AOC will remain at 18, but a minimum age requirement of 16 will also be implemented. The minimum age requirement will be the age at which a person cannot, under any circumstances, give their consent to sexual activity. This should be coupled with fulfilment of a set of   narrowly defined conditions contained as an exception  within the provision prescribing the minimum age requirement. The conditions would include: (i) a minimum age gap of 2-3 years between the victim and the accused; (ii) existence of a non-exploitative relationship; and (iii) accused not occupying a position of trust, authority or influence over the victim. For example, under the proposed framework, a consensual sexual relationship would not automatically be treated as statutory rape but as a protected consensual relationship if, firstly, the age gap between the victim and the accused is 2-3 years; secondly, the relationship isn’t exploitative in nature; and thirdly, the accused is not in a position of trust or authority.  

For arriving at a fixed minimum age-gap suggestions should be taken from child psychologists, social workers and adolescent rights activists familiar with India’s realities. Additionally, existence or non-existence of an exploitative relationship to be deciphered on a case-by-case basis by the judiciary guided by factors like voluntariness, maturity, length of relationship and contextual evidence. This creates room for judicial discretion in cases of a consensual sexual relationship which does not exist in the present framework.

For incorporating such an exception, changes will have to be made to Sections 4 and 8 of the act. A parallel can be drawn from Section 2C:14-2 of the New Jersey Code of Criminal Justice or Section 9A.44.079 of the Revised Code of Washington in this regard. The minimum age requirement and the exception could be added as an explanation or proviso to the abovementioned sections of the act. 

As socio-legal realities in a country like USA differ from that of India’s these legislative amendments should be paired with school-based and community-based sexual education to address stigma at grass root levels. This, in addition to ensuring that parents do not invoke POCSO provisions as a disciplinary tool, would also ensure that adolescents have a better understanding of consent and power imbalance, equipping them with the required knowledge to differentiate a consensual relationship from grooming.

Furthermore, periodic review mechanisms should be conducted to address any misuse or gaps in application of the amended laws. The review mechanism must entail data collection of the number of cases wherein the exception is invoked and the outcome of such cases. If these reviews reveal patterns of under protection or overcriminalization, the legislature can narrow down or widen the conditions accordingly. Such a nuanced approach carefully balances a child’s sexual rights without compromising child protection and also remains responsive to evolving social realities.