Consent, Criminalisation, And Context: Evaluating The Case For Revising The Pocso Threshold

Anup Koushik Karavadi and Kanishk Tiwari

Introduction

The Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted to address the widespread problem of child sexual abuse and to remedy the limitations of the Indian Penal Code in prosecuting such offences.¹ The statute adopts a strict liability model that considers all persons below eighteen incapable of providing valid sexual consent, thereby criminalising every form of sexual intimacy involving minors, regardless of context or voluntariness.² This bright line rule was justified by Parliament on the belief that any inquiry into the minor’s consent or capacity would expose victims to intrusive questioning and the possibility of revictimisation during trial.³

However, the social realities of adolescent behaviour and romantic engagement have evolved significantly in the years since the law’s enactment. Empirical evidence demonstrates that adolescents frequently engage in consensual relationships, many of which involve sexual intimacy.⁴ A considerable proportion of POCSO prosecutions today arise not from exploitative conduct but from consensual adolescent relationships, often due to parental disapproval based on caste, community, or socio economic factors.⁵ These prosecutions undermine the autonomy of adolescents, produce long term social and psychological harm, and strain an already overburdened criminal justice system.

Simultaneously, High Courts across India have increasingly recognised the tensions between POCSO’s protective purpose and its effects on adolescent relationships. Some courts have adopted strictly literal interpretations of the statute, while others have carved exceptions for consensual relationships in order to prevent injustice.⁶ This divergence has produced a jurisprudential grey zone that complicates the legal treatment of adolescent consent.This article analyses the need to revisit the POCSO consent threshold, with particular emphasis on the phenomenon of adolescent relationships. It does so through a cumulative structure: critiquing the overinclusive criminalisation resulting from the fixed age rule, Examining the judicial fragmentation that has produced the grey zone, Evaluating competing reform proposals and finally arguing for a contextual standard that balances autonomy with protection.

Statutory Design and the Problem of Overinclusive Criminalisation

POCSO defines a child as any person below eighteen years of age and attaches criminal liability to all sexual acts involving such persons. This fixed age rule reflects the legislative choice to prioritise protection and avoid any judicial inquiry into the minor’s state of mind. Early drafts of the legislation contemplated an exception for consensual sexual activity among adolescents aged sixteen to eighteen, contingent on a judicial assessment of capacity.⁷ However, this provision was ultimately removed due to concerns that it would place the victim’s conduct under scrutiny, thereby defeating the protective aims of the law.⁸

Although the rule was well intentioned, its practical consequences reveal significant overbreadth. Studies indicate that many adolescents willingly engage in romantic and sexual relationships as part of normative developmental processes.⁹ Developmental psychology recognises that romantic intimacy during adolescence contributes to emotional regulation, identity formation, and interpersonal maturity.¹⁰ Criminalising such relationships can disrupt healthy developmental trajectories and impose significant psychological burdens on adolescents, particularly when they are subjected to institutionalisation or trial processes.

Moreover, empirical evidence demonstrates that a substantial proportion of POCSO prosecutions involving adolescents originate not from coercive situations but from complaints lodged by parents objecting to consensual relationships.¹¹ In Maharashtra, more than eighty percent of such cases were initiated by guardians after adolescents eloped with partners.¹² NFHS data similarly indicates that many women report first sexual experiences before eighteen and do not characterise these encounters as coercive.¹³ These findings suggest that the statute frequently functions as an instrument of social control rather than a mechanism for child protection.

Mandatory reporting obligations under POCSO further exacerbate the consequences. Medical practitioners are required to report all cases involving sexual activity with minors, even in situations involving consensual relationships.¹⁴ This compels adolescents to avoid formal healthcare channels, resulting in unsafe abortions, delayed medical care, and significant reproductive health risks.¹⁵

The cumulative effect of these features is the creation of an enforcement regime that captures a wide range of consensual adolescent conduct unrelated to POCSO’s protective objectives. This overinclusive criminalisation sets the stage for the inconsistent judicial responses that have followed.

Judicial Responses and the Emergence of a Grey Zone

The rigid statutory framework has prompted divergent judicial approaches when courts are confronted with consensual adolescent relationships. The jurisprudence may broadly be divided into two categories.

The first category comprises cases in which courts apply POCSO strictly, holding that a minor’s consent is legally irrelevant. The Supreme Court in Independent Thought v. Union of India held that sexual intercourse with a married girl between fifteen and eighteen constitutes an offence, emphasising that minors lack the cognitive maturity necessary to appreciate the consequences of sexual activity.¹⁶ High Courts have echoed this position, reiterating that consent is immaterial and that POCSO overrides all personal law considerations.¹⁷ These decisions reflect a literal reading of the statute and prioritise its protectionist purpose.

The second category includes cases where courts have intervened to prevent criminalisation of consensual adolescent relationships. In Vijayalakshmi v. State, the Madras High Court reasoned that adolescent romantic relationships are part of biosocial dynamics and that criminalising them would undermine POCSO’s objectives.¹⁸ Other courts have quashed proceedings where the relationship was evidently voluntary, the age gap minimal, and the minor expressed a desire to continue the relationship.¹⁹ Recently, the Delhi High Court described teenage relationships as falling within a legal grey area and questioned whether consensual adolescent intimacy should invariably be treated as an offence.²⁰

These divergent approaches reveal the emergence of a judicial grey zone marked by three characteristics. First, the outcomes in cases involving similar facts vary significantly depending on the interpretive philosophy adopted by the court. This undermines doctrinal consistency and predictability in an area involving serious criminal liability. Second, courts that recognise adolescent autonomy often lack a principled framework for assessing consent. Some decisions rely on factors such as marriage, community acceptance, absence of physical force, or willingness of the minor to continue living with the accused.²¹ These considerations, while mitigating, do not adequately address risks of exploitation, particularly in cases involving significant age gaps or relationships of trust and dependence. Third, inconsistent judicial approaches prolong the suffering of both the minor and the accused. Cases often take years to reach quashing stages in High Courts. During this period, adolescents may be placed in Child Welfare Committee homes and accused persons may spend prolonged periods in custody.²² Even upon acquittal, reintegration into family and community remains fraught due to lingering stigma and emotional trauma.

This fragmentation indicates that statutory rigidity cannot accommodate the diversity of adolescent relationships. The grey zone that has emerged is therefore symptomatic of deeper structural issues that require legislative reconsideration.

Competing Reform Proposals and the Case for a Contextual Standard

Debates on reforming the POCSO consent framework generally fall into three broad approaches:

One proposal advocates reducing the age of consent to sixteen. Proponents argue that this aligns with international practice and better reflects adolescent behaviour patterns. However, lowering the threshold merely relocates the boundary and perpetuates the same conceptual error of equating chronological age with competence.²³ It continues to criminalise relationships such as those involving fifteen and seventeen year olds, which may be developmentally normative and non-exploitative.

A second proposal recommends empowering trial courts with controlled discretion to terminate proceedings in consensual adolescent cases at an early stage. This would allow Special Courts to evaluate factors such as age gap, voluntariness, and absence of coercion before allowing cases to proceed.²⁴ However, discretion without clear statutory parameters risks inconsistent application and potential misuse. This approach requires a robust doctrinal framework to guide judicial assessment.

A third and more normatively grounded approach involves adopting a contextual or competence based standard. Academic literature emphasises that competence to consent involves a composite evaluation of the minor’s knowledge of the sexual act, appreciation of its consequences, emotional maturity, absence of manipulation, and the relational context.²⁵ A competence standard allows the law to distinguish between relationships that are developmentally appropriate and those that are exploitative.

The author Vinod Parwani, writing for NUJS Law Review journal presents a framework providing structured parameters for such an evaluation of competence, including the minor’s age, age differential with the partner, the nature of the sexual act, and the presence of relationships of trust or authority.²⁶ This approach preserves the protective core of POCSO while avoiding the overbreadth of the fixed age rule.

Concerns about revictimisation can be mitigated through existing procedural safeguards. POCSO mandates child friendly trials, regulates cross examination, and prohibits reliance on the minor’s past sexual history.²⁷ Competence assessments can also rely on expert testimony, as permitted under the Evidence Act, thereby reducing intrusive questioning of the minor.²⁸

A contextual standard therefore represents the most promising approach. It balances adolescent autonomy with protection, aligns with developmental science, and provides courts with a principled framework. Legislative amendment introducing such a standard would create coherence, reduce judicial inconsistency, and ensure that POCSO continues to serve its protective purpose without criminalising normative adolescent behaviour.

Conclusion

The fixed age rule under POCSO was enacted to safeguard children, but its practical operation results in the systematic criminalisation of consensual adolescent relationships. This overinclusive criminalisation undermines adolescent autonomy, enables parental misuse, hinders access to reproductive healthcare, and produces significant social and psychological harm. Judicial attempts to mitigate these outcomes have produced doctrinal fragmentation and inconsistency. Reforming the consent framework requires a shift away from strict age based categorisation. A contextual or competence based standard, supported by robust procedural safeguards, offers an alternative that preserves the protective aims of POCSO while recognising the evolving capacities of adolescents.

With a hope of settling the issue while not encroaching upon the legislative domain, the recent judicial activism, with Indira Jaising being at the helm of pursing the cause of revisiting the contours of consent age under POCSO to meet social realities, we can expect a decision of the Supreme Court that balances the individual autonomy while preserving the legislative intent of this welfare legislation ensuring that adolescents are neither exploited nor unjustifiably criminalised.

References

1. The Protection of Children from Sexual Offences Act, No. 32 of 2012.
2. Id. §§ 3, 5, 7, 11; see also Prem Vinod Parwani, Revisiting Consent under POCSO: From a Fixed Age Rule to a Competence Based Standard, 16 NUJS L. Rev. 323, 324 (2023).
3. Dep’t Related Parliamentary Standing Comm. on Human Resource Development, Two Hundred Fortieth Report on the Protection of Children from Sexual Offences Bill, 2011, ¶ 6.9.
4. National Family Health Survey 2019 to 2021, India Report, available at https://dhsprogram.com/pubs/pdf/FR375/FR375.pdf.
5. HAQ Centre for Child Rights, Study on the Working of Special Courts under the POCSO Act in Maharashtra (2019).
6. Vijayalakshmi v. State, 2021 SCC OnLine Mad 317; In re: Right to Privacy of Adolescents, 2024 INSC 614.
7. Rajya Sabha Report, supra note 3, ¶¶ 6.5 to 6.7.
8. Id. ¶ 6.9.
9. rushti Shukla et al., Legal Complexities of Adolescent Relationships, Cureus (2024).
10. Veenashree Anchan et al., Consensual Sex as a Matter of Developmental Need, Indian J. Psychol. Med. (2020).
11. HAQ Report, supra note 5.
12. Id.
13. NFHS, supra note 4.
14. POCSO Act, § 19.
15. Nanditta Batra, Mandatory Reporting under POCSO and Medical Ethics, Indian J. Med. Ethics (2024).
16. Independent Thought v. Union of India, (2017) 10 SCC 800.
17. Karnataka High Court ruling reported in Indian Express, POCSO Overrides Personal Law (2022), available at: https://indianexpress.com/article/cities/bangalore/pocso-act-muslim-personal-laws-karnataka-hc-8243288/.
18. Vijayalakshmi v. State, supra note 6.
19. Arhant Janardan Sunatkari v. State of Maharashtra, 2021 SCC OnLine Bom 136.
20. Thapliyal, [POCSO Act] Teenage Love Falls In ‘Legal Grey Area’, Debatable If It Can Be Categorized As Offence: Delhi High Court, 2024, available at: https://www.livelaw.in/high-court/delhi-high-court/delhi-high-court-pocso-act-teen-relationship-offence-270893.
21. State v. Suman Dass, SC No. 66/13 (Patiala House Courts) (unreported).
22. Madan Shukla and Biraj Swain, The Unintended Victims: How POCSO Affects Adolescents’ Autonomy, LiveLaw, November 2024, available at: https://www.livelaw.in/articles/pocso-act-reforms-consensual-teenage-relationship-275180.
23. Parwani, supra note 2, at 330.
24. Shukla, Supra note 22.
25. David Archard, SEXUAL CONSENT (1st ed. Routledge Publications, 1998).
26. Parwani, supra note 2, at 336.
27. POCSO Act §§ 33, 36; Indian Evidence Act § 53A.
28. Indian Evidence Act § 45.