By Binny Yadav
Should a 17-year-old boy be labelled a rapist for being in a consensual relationship with his 16-year-old girlfriend? That’s the question at the heart of an intense legal and moral debate currently before the Supreme Court. At stake is the future of thousands of adolescents whose romantic choices are landing them—and often their families—before the criminal justice system under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Designed to shield children from abuse, POCSO criminalises all sexual activity involving persons under 18, irrespective of consent. But increasingly, courts and legal experts are questioning whether this blanket approach is punishing young love instead of protecting young lives.
A LAW MEANT TO PROTECT, NOW PUNISHING LOVE?
Under POCSO, the age of consent is a hard line at 18. Any sexual relationship involving a person below that age is automatically deemed non-consensual in the eyes of the law. While this strict liability regime has served as a deterrent against child abuse, it has also become a trap for adolescents exploring romantic relationships.
Teenagers, mostly boys, have been charged with rape for relationships that, in any other context, would be seen as consensual and natural. Parents often file complaints, sometimes out of disapproval or fear, weaponizing the law to punish relationships across caste, class, or community lines.
THE GOVERNMENT: 18 IS NON-NEGOTIABLE
The Union government has firmly opposed any dilution of the age of consent. In its submission to the Supreme Court, it argued that 18 remains a necessary and reasonable threshold in a country where minors are vulnerable—not just to strangers, but often to those closest to them.
It warned that lowering the age could undo years of progress in child protection laws. However, the centre has left the door open for courts to exercise discretion in individual cases, stopping short of supporting any statutory change.
INDIRA JAISING: “TEENAGERS IN LOVE ARE NOT CRIMINALS”
Representing a contrasting view is Senior Advocate Indira Jaising, appointed amicus curiae in the Nipun Saxena case. Jaising has argued for a nuanced “read-down” of the law, suggesting that consensual sexual activity between adolescents aged 16 to 18 should be decriminalised. “The law cannot treat teenagers in love the same way it treats adult sexual predators,” she asserts. “Doing so not only punishes natural adolescent behaviour, but also overburdens the justice system,” she says.
Her argument focuses on proportionality. Jaising points out that young boys from underprivileged backgrounds are disproportionately affected, often for being romantically involved with girls slightly younger than them.
COURTS ARE LISTENING—AND SIGNALLING CHANGE
Several High Courts and even the Supreme Court have flagged the unintended consequences of POCSO’s blanket criminalisation:
- The Delhi High Court recently acquitted a 19-year-old boy in a consensual relationship with a 16-year-old girl, terming it “natural adolescent exploration”.
- The Madras High Court, in the Vijayalakshmi and Sabari cases, urged lawmakers to distinguish between exploitation and consensual teenage romance.
- The Allahabad High Court warned that POCSO was being misused to turn consensual love into a weapon of prosecution.
Former Chief Justice DY Chandrachud added weight to the call for reform. He stated that nearly one in four POCSO cases involve consensual relationships, and noted that acquittal rates in such cases exceed 90 percent—a clear indicator of a mismatch between law and lived reality.
KEY LEGAL MILESTONES
- Independent Thought vs Union of India (2017): SC read down the marital rape exception for girls aged between 15 and 18.
- Sabari vs Inspector of Police (Madras High Court, 2020): Recognised that teenage romances deserve differentiated treatment.
- CJI’s remarks (2023-2025): Advocated for Parliament to reconsider the age of consent in light of judicial experience.
RETHINKING PROTECTION: TOWARDS A “CLOSE-IN-AGE” EXCEPTION?
Supporters of reform are advocating a “close-in-age” exception—where consensual sexual activity between teenagers within a defined age gap is not considered statutory rape. Such a framework already exists in several jurisdictions worldwide and is seen as a way to balance protection with proportionality.
While the need to shield minors from abuse remains undisputed, the current legal regime may be doing more harm than good when it criminalises consensual love between peers.
THE ROAD AHEAD
The Supreme Court now stands at a crucial crossroad. Should it maintain the current blanket approach? Or read down the law to reflect the complexities of adolescent behaviour?
Either way, its decision in the Nipun Saxena case will have long-lasting implications—not just for POCSO jurisprudence, but for how India views and governs adolescent sexuality.
For now, the law remains absolute. But with judicial voices growing louder and societal attitudes shifting, a more compassionate, context-sensitive framework may soon emerge.
—The writer is a New Delhi-based journalist, lawyer and trained mediator