In the last six months, almost every High Court has grappled with the issue of criminalizing romantic relationships under the Protection of Children from Sexual Offenses Act, 2012 (hereafter POCSO). Different high courts have taken different steps in dealing with such cases, but what remains common is the recognition of the need for reforms in POCSO to ensure that teenagers do not face the behavior of their stepmother.

Recently, the Delhi High Court noted that teenage love falls into a “legal gray area” and it is debatable whether it can actually be classified as a crime. Similarly, Uttarakhand High Court and the Kerala High Court called on states to consider counseling instead of directly arresting teenage boys involved in consensual relationships with underage girls. The Allahabad High Court even expressed concern about the misuse of POCSO provisions by parents of minor girls, in case of their disapproval of the relationship between the couple. Despite these concerns raised by the High Courts, the Supreme Court in the case In re: Adolescents’ Right to Privacy, 2024held that cases under POCSO can never be consensual or romantic because the consent of a minor is no consent at all. This raises significant concerns about the right to autonomy of adolescents and therefore calls for a review of the actual purpose of POCSO.

Child abuse has remained a persistent problem throughout history, manifesting itself in various forms, sexual abuse being one of the most egregious. Acts such as rape, sexual assault, harassment and trafficking are major human rights violations. Accordingly, Parliament enacted the Protection of Children from Sexual Offenses Act, 2012 (POCSO) with the primary objective of protecting children from such offenses and promoting their healthy physical, emotional, intellectual and social development in a neutral setting of gender point of view.

However, 12 years later, what we are witnessing today is that children are maturing at younger ages, both physically and emotionally, compared to previous generations. Many are now making informed decisions about their lives, including their sexual relationships. right National Family Health Survey (2019-2021)10% of women between the ages of 25 and 49 had their first sexual experience before the age of 15 and 39% before the age of 18. Remarkably, none of these women reported their experiences as forced or non-consensual. Similarly, a study on the functioning of special courts under POCSO in Maharashtra found that parents filed 80.2% of complaints after their children ran away with a partner. These figures show that many POCSO cases are not initiated because of sexual exploitation, but instead a result of family disapproval of consensual relationships. Such differences may stem from various factors, including differences in social status, caste or religion between the couple.

While some High Courts have begun to overturn such cases involving consensual acts, the bigger question is: How many of these cases actually make it to the High Courts, and how long does it take for that to happen? After enduring years of suffering, social ostracism and the complete erosion of their confidence, the child is expected to reintegrate into society – a society that now labels them rapists. But how realistic is such a reintegration? How many children are really able to recover and rebuild their lives after such an ordeal? Even if they are acquitted, can the trauma they endured be erased? These questions remain largely unanswered.

It is also essential to note that the impact of such criminalization is not limited to the accused. It affects the victim just as deeply. The victim often faces social stigma, academic difficulties, and the emotional cost of navigating the legal process. While the victim’s testimony alone is considered sufficient to convict the accusedbut not for his acquittal. No matter how many times the victim claims the act was consensual and her willingness to live with the accused, the court completely ignores her testimony, resulting in the conviction of the accused. The psychological trauma of having their consent and personal power completely disregarded both during the filing of the First Information Report and at trial leaves deep and indelible scars on their emotional health and erodes their confidence in the legal system.

Furthermore, while the POCSO Act is gender neutral, the application is gendered. Most of the time, the teenage girl is referred to the Child Welfare Committee, while the boy is referred to the Juvenile Justice Board and hence is tried.

It would be wrong to limit the scope of consequences of criminalization under POCSO to legal and social consequences only. Such criminalization also jeopardizes access to health care for adolescents, leading to unsafe abortions and sometimes even neonatal and maternal mortality. Teenage pregnancy has been a problem in our country due to the prevalence of child marriage and therefore to create awareness among teenage girls and give them safe access to healthcare. Adolescent Sexual and Reproductive Health (ARSH) Policy. it was launched by the government in 2005 in line with World Health Organization guidelines. This policy aimed to provide preventive, promotional and curative counseling services to both married and unmarried teenagers and educate them about the prevalence of HIV/AIDS, Sexually Transmitted Diseases (STDs) and the negative impact of early pregnancy. The most important feature of ARSH is that it ensures that service providers are trained to handle adolescent cases without prejudice, providing a platform for adolescents to open up freely and without fear of judgment. However, with the passage of POCSO in 2012 and the mandatory reporting of sex crimes, the doors of ARSH for teenagers are closed. Now, teenagers are not only reluctant to avail the benefits of health facilities, but also prefer to take unsafe abortions through self-medication or dangerous abortion techniques learned online. Therefore, the impact and access of ARSH is diminished, putting adolescents at an even greater risk of mortality and infertility.

So what can be done to prevent the devastating consequences of such criminalization. Many academics and scholars are preaching to lower the age of consent back to 16. However, it cannot be an adequate solution, as it would allow predators to escape guilt under the pretext of the victim’s consent, leading to the abuse of underage girls by older men or vice versa. This was also highlighted in the 283rd report of the Law Commission.

One of the alternative solutions is in the POCSO Act itself. The law provides for the establishment of special courts for a child-friendly trial procedure. Granting the judges of these special courts controlled discretionary powers under the POCSO Act itself would not only shorten the legal process but also ensure that the process remains child-friendly and that the best interests of the child remain paramount. Dismissal of the case, which is done by the High Courts under their inherent powers after years of struggle, could be done by the trial courts at the original trial level if it can be inferred to be consensual. However, it cannot be the golden rule, applicable to every set of facts. Before dismissing the case, factors such as the age of the accused and the victim, the age difference between them, their understanding of the crime, their current social situation, whether or not they want to live together, should also be taken into account. Such controlled discretion would ensure that predators cannot escape accountability and that teenagers are not burned by the wrath of the legal process.

Another solution could be to adopt a preventive measure, i.e. integrating sex education and legal education into the school curriculum, especially for students in the 11th and 12th grades, when they are between the ages of 16 and 18 and are more susceptible to such relationships. The supreme court recently mandated governments to deliver sex education and awareness about POCSO. By educating teens about their rights, the law, and the limits of consent, we can help prevent situations that could lead to unintended legal complications.

In conclusion, while the intention behind the POCSO Act is to protect children from sexual exploitation and abuse, its current application, particularly in cases involving consensual sexual acts between adolescents, does not take into account the complexity of relationships between adolescents. This surveillance creates significant legal, social and health challenges for young people, including barriers to essential healthcare services and the risk of psychological trauma. By giving special courts more discretionary powers, integrating sex and legal education into the school curriculum and taking a more nuanced approach to adolescent relationships, the law can better fulfill its purpose of protecting children while empowering them to make decisions informed about their lives. and their health. Only then can we claim that the POCSO Law truly supports the best interests of children and adolescents.

About the authors: Medha Shukla is an LL.M. student at Odisha National Law University and Biraj Swain is Chief Minister’s Chair Professor of Child Rights at Odisha National Law University. The authors can be contacted at [email protected]