Revisiting the Age of Consent under POCSO

Senior Advocate Indira Jaising, appointed amicus curiae, submitted to the Supreme Court that consensual sexual relationships between adolescents aged 16–18 should not be criminalised under the POCSO Act, 2012, urging a nuanced interpretation to prevent misuse.

• Age of Consent under POCSO: The Protection of Children from Sexual Offences (POCSO) Act, 2012 defines a “child” as anyone below the age of 18; hence, any sexual act with a person under 18 is considered non-consensual and criminal, regardless of mutual agreement.
• Conflict with Adolescent Behaviour: Judicial observations and rights-based critiques highlight that criminalising consensual relationships among adolescents aged 16–18 leads to unjust prosecutions and social stigma, despite absence of exploitative intent.
• Stringent Provisions in Place: Under Section 6 of the POCSO Act and aligned provisions in the IPC, BNS, and the Prohibition of Child Marriage Act, 2006, penetrative sexual assault on any minor attracts severe penalties, with no current legal scope for exceptions in consensual adolescent cases.

Judicial and Legal Interventions

• Supreme Court Review in Progress: The petition by Advocate Nipun Saxena and the submissions by Indira Jaising call for an exception for consensual sexual activity between 16–18-year-olds to be read into POCSO and Section 63 of the BNS.
• Madras High Court Precedent: In Vijayalakshmi v. State Rep. (2021), the Madras High Court proposed a safeguard by recommending that the age gap between the partners be no more than five years, to prevent predatory relationships disguised as consensual.
• Law Commission’s 2023 Stand: The Law Commission opposed changing the age of consent but endorsed “guided judicial discretion” during sentencing to differentiate between exploitative conduct and non-exploitative adolescent intimacy.

Way Forward and Policy Concerns

• Need for Legal Nuance: An exception clause for consensual acts between adolescents aged 16–18 would protect individual rights while upholding the protective objectives of POCSO, ensuring genuine cases of abuse are not diluted.
• Education and Sensitisation Imperative: Comprehensive adolescent sex education and legal awareness initiatives must be implemented to inform youth about the implications of the law and the concept of consent.
• Preventing Misuse and Judicial Overreach: Blanket criminalisation risks undermining judicial efficiency and harming young individuals emotionally and socially; hence, judicial discretion must be codified with safeguards to prevent arbitrary outcomes.

Practice Question:

"In light of evolving adolescent rights and judicial observations, critically examine the challenges posed by the uniform age of consent under the POCSO Act, 2012. Suggest a legally sound framework to reconcile child protection with adolescent autonomy."   (250 words)