– Vaani Negi
Introduction
Adolescence, the latest four-episode miniseries on Netflix, has been rapidly gaining acclaim, and deservedly so. The series delves into the harrowing aftermath of a 13-year-old boy being accused of murder. The narrative reveals school-going children looking for direction from a digital world that warps their perceptions, rather than from teachers no longer commanding their respect. The story does not offer solutions. It does something more urgent- it forces us to confront the questions we have been too afraid to ask.
Within the contours of teenage relationships, one of the most urgent but divisive questions in India’s socio-legal milieu is consent. The Indian statutory system took a categorical approach with the passage of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, “POCSO”), declaring all sexual acts involving minors as statutory offences despite (rather, irrespective of) the presence of mutual consent. As per the law, the consent of a minor is immaterial. Although POCSO’s legislative intent is based on protecting minors from exploitation and abuse, its blanket criminalisation of all adolescent sexual experiences has resulted in some ethical entanglements.
Based on the first impression, a protective and punitive approach appears unassailable in light of the Statement of Objects and Reasons of the POCSO Act. However, the ground reality of teenage relationships paints an altogether different picture, one that begs sensitive observation. As previously observed, courts are seen struggling with an ever-growing number of cases where teenagers find themselves in the middle of a criminal prosecution resulting from their mutual actions- a young couple in love, uninformed that their feelings, when acted upon, have been preordained as cognizable criminal activity.
Adolescence is a period of profound transformation, which should not be met with hostility; rather, institutional support and an empathetic outlook. However, the law as it stands views such relationships through a lens of assumed perversity rather than as a complex psychological and emotional rite of passage and self-discovery. Nevertheless, while adolescence is full of grey areas, the law frequently speaks in absolutes.
The world depicted in Adolescence is not too far removed from the cases that end up in our courts: youngsters who are unsure of themselves and navigating strong emotions in a society that provides them with little support and even less forgiveness. Rarely do their tales neatly fit within the strict parameters our statutes offer. Against this backdrop, judicial interpretations of the POCSO Act illustrate the law’s encounter with keeping pace with these evolving social realities. Examining how the Indian judiciary has handled this delicate nexus of statutory intent and teenage experience is therefore essential.
Key Judicial Interpretations: A Case for Legislative Reform?
In Re: Right to Privacy of Adolescents (2024), the Supreme Court held that consent is not a deciding factor in POCSO cases. A plain reading of Sections 375 Sixthly and 376(2)(n) of IPC makes it unequivocally clear that a sexual relationship with a minor is considered rape, regardless of consent. Additionally, the POCSO Act, enacted to protect children from sexual abuse and exploitation, leaves no room for discretion when the victim is a minor.
While the court was correct in rejecting the High Court’s moralistic rhetoric and unscientific commentary on adolescent sexuality, glaringly visible in the impugned judgment, the broader concern raised by the High Court deserves serious legislative attention. The problem was that, given the facts before the court involving a 25-year-old and a 14-year-old girl, it was entirely inappropriate for the High Court to use this as a platform for debating adolescent consent. The accused was neither a near-age peer of the victim nor an adolescent. Thus, the Court held that the High Court had no legal basis to intervene under Article 226 of the Constitution or Section 482 of the CrPC to acquit the accused.
However interestingly, the question of seminal importance that has arisen for consideration can better be illustrated and understood by referring to a 2025 decision of the Bombay High Court in Vijay Chand Dubey v. State of Maharashtra.
In this case, the Bombay High Court granted bail to an accused under POCSO, where the 14-year-old victim had willingly engaged in a romantic relationship with the accused for two years, voluntarily staying with him for three days, and having a consensual sexual encounter, which was corroborated by her medical examination. The court observed that while the rigours of Sections 4, 6, and 8 of the POCSO Act are strict in protecting minors, it does not prevent judicial discretion at least at the stage of bail, when it comes to cases involving a factual matrix of consensual sexual intercourse between teenagers.
Likewise, in the recent case of State v. Hitesh (2025), the Delhi High Court found that the relationship between the prosecutrix and the appellant was consensual, which was corroborated by her testimony and medical examination. In this case, however, the minority of the prosecutrix was not established by the prosecution and thus, POCSO was not attracted. The Single Judge, anyway, took the liberty of voicing his opinion on how society and the law must acknowledge the lived reality of adolescent relationships and that the legal system must balance safeguarding young people with a compassionate and understanding approach. It must ensure that justice does not become an instrument of undue punishment in cases of ‘adolescent love’.
It is important to note, however, that judicial discretion exercised at the stage of granting bail is at best a temporary fix. It neither prevents the trial from moving forward nor stops the conviction of the accused under the stringent provisions of POCSO upon the conclusion of the trial. As a result, the jurisprudence still operates under the clear statutory law that states that any physical contact with a minor is exploitative and prevents them from exercising their own bodily agency, without distinction.
Slippery Slope of Consent
Speaking at the National Annual Stakeholders Consultation on Child Protection, the then CJI Chandrachud highlighted the urgent need for legislative attention to the increasing complexities surrounding adolescent sexuality. He remarked that the POCSO Act currently treats all sexual activity involving individuals under 18 as criminal, irrespective of mutual consent between minors, an approach that, he noted, presents significant challenges for judges handling such cases.
However, the introduction of such an exegesis is still a very delicate topic within the sociocultural fabric of a nation like India. It runs the risk of being interpreted as endorsing adolescent sex and might be interpreted as weakening the legal safeguards meant to protect children from exploitation and abuse.
Recent court rulings, though, can be seen to have attempted to cautiously promote a more nuanced understanding of adolescent relationships while navigating the tough waters of the POCSO framework. However, this delicate balancing act is not without a great deal of hesitation. It is reasonable to worry that any move to decriminalise consenting teen sexual acts could weaken the strict protections provided by POCSO. If the law starts to allow for adolescent agency at the expense of weakening its deterrent effect, the very purpose of the statute, that is to provide an unwavering protective shield for minors, risks being compromised.
An equally compelling concern is that recognising adolescent consent in law could result in opening the Pandora’s Box of instances of exploitation by older individuals (although themselves adolescents). Another strong worry is that legalising adolescent consent might lead to a plethora of cases of older people (who are still adolescents) taking advantage of their consent. The strength of POCSO may be undermined by the inability to distinguish between true adolescent bonding and excessive grooming influence, which would conflate the lines between permissiveness and protection. Therefore, finding a balance between protecting children and honouring their physical agency is still a difficult task that calls for a thoughtful and progressive legal approach.
International Stance and The Way Forward for India
A comprehensive study by Enfold Proactive Health Trust and UNICEF-India examined how statutory rape provisions under POCSO and IPC are applied in cases involving consensual adolescent relationships. The study focused on 1,715 such cases, referred to as “romantic cases”, which were adjudicated by Special Courts across Assam, Maharashtra, and West Bengal between 2016 and 2020. Out of the 7,064 POCSO judgments from these, romantic cases made up 24.3% of the total. Notably, the majority of complaints in these cases were filed by the girls’ parents (70.8%) and other relatives (9.4%), together accounting for 80.2% of the informants. Only 18.3% of the complaints were initiated by the girls themselves. Additionally, in 87.9% of the cases (1,508 in total), the girl acknowledged being in a romantic relationship with the accused at some point during the investigation or trial.
The findings of the aforementioned study echo concerns and provide empirical support for the urgent need to recalibrate the law. The argument is not for blanket decriminalisation without safeguards. The first step could be allowing discretion to courts to assess cases on a factual basis in the absence of the presumption of culpable mental state under Section 30 of the POCSO Act in cases where both parties are minors. This can be achieved by adding a Proviso to Section 2(d) of POCSO, defining “child,” could be inserted, stating that: “Provided that where both persons involved in a mutually consensual sexual act are above the age of 15 and within three years of each other in age, such persons shall not be treated as children for the purposes this Act“.
A close-in-age exemption is not only prudent but also crucial in India, where POCSO cases involving consenting adolescent relationships are flooding the courts. In a society where sex education is lacking and moral control over one gender is still ingrained, allowing courts to evaluate context and consent would help differentiate between exploitation and adolescent exploration. In line with the spirit of the Juvenile Justice (Care and Protection of Children) Act, 2015, a three-year age buffer recognises the emotional complexity of adolescence and prioritises reform over punishment without compromising child protection.
Further, an Explanation should be appended to the above-mentioned Proviso clarifying that the concerned ‘mutually consensual sexual act’ would be a matter of fact, not out of the purview of judicial scrutiny. This ensures that consenting adolescents are not arbitrarily penalized under POCSO while still allowing room for intervention in cases where coercion, exploitation, or grooming is evident.
Such models are not unprecedented and exist internationally. In a considerable number of U.S. states, close-in-age exemptions exist, which are commonly referred to as “Romeo and Juliet laws”. This exemption significantly reduces the liability of minors who willingly engage in sexual activity with peers from automatic criminal liability. However, the permissible age gap varies across different jurisdictions. In Virginia, for instance, these exemptions strictly apply to minors and do not extend to individuals over 18. However, they allow adolescents between 15 and 17 years of age, as well as those aged 13 to 15, to engage in sexual activity with peers of a similar age.
Canada follows a different approach by allowing 14 and 15-year-olds to consent to sexual activity, provided their partner is no more than five years older and there is no element of exploitation, such as a relationship of trust, authority, or dependency. If the age gap exceeds five years, any sexual activity is deemed a criminal offense. Additionally, 12- and 13-year-olds may legally consent to sexual activity with a partner who is less than two years older, under similar conditions ensuring that no power imbalance or exploitation is involved.
Article 8 of the Directive 2011/93 of the European Parliament and the Council, provides that Member States have the discretion to determine criminal liability is attracted in case of consensual sexual activities between peers who are close in age and at a similar level of psychological and physical development or maturity, provided that no abuse is involved. Nearly half of the European countries incorporate exceptions, allowing such acts to be lawful if both individuals are close in age or if their age gap does not exceed a specified limit. This approach aligns with the recommendation of the United Nations Committee on the Rights of the Child (General Comment No. 20) that states refrain from penalizing adolescents who engage in consensual, non-exploitative relationships with peers of a similar age.
Conclusion
Ignorantia legis non excusat asserts that ignorance of the law offers no reprieve, but can the legal system justify its penalisation of minors who have been deprived of essential awareness and exposure to begin with? What emerges from this discussion is the obvious problem with assuming teenagers can understand the complexities of intimacy and anatomy on their own. From the outset, this is a disaster waiting to happen. It won’t help to simply label these discussions as taboo and push them to the sidelines.
In equal parts brutal and heartbreaking, the lived reality compels us to face an unsettling truth: unchecked social media and the way it quietly erodes young, impressionable minds. Teenagers are shaped by social media in ways that their families are oblivious to, weakening relationships, severing communication, and, at times, fostering toxic masculinity among young boys. Adolescence leaves us with this warning.
Education and awareness are effective yet underutilised tools for removing the stigma shrouding these kinds of conversations. Additionally, rather than depending only on strict age classifications, an effective strategy would prioritise the girl’s (or boy’s, as the case may be) testimony, similar to legal provisions in adult rape cases. Furthermore, granting adolescents access to private sexual and reproductive healthcare without requiring them to mandatorily report it under POCSO could help promote more equitable and healthy relationships without fear hanging over their heads. The introduction of a near-age exemption within POCSO and BNS by the Indian legislature is long overdue. Additionally, it would clarify situations in which both parties fit the legal definition of a “child”—a grey area that currently results in automatic prosecutions, where even the alleged “victim” often refuses to testify against the accused.
The author is a fifth-year student at the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, New Delhi.