E-Paper
Re-examining POCSO in regulating adolescent intimacy
Authored by - Ashok Ramappa Patil, vice chancellor and Sumit Kumar Singh, research assistant, National University of Study and Research in Law, Ranchi.
“Life of the law has not been logic; it has been experience” wrote Justice Oliver Wendell Holmes Jr in The Common Law (1881) and this is a reality that continues to guide the modern criminal jurisprudence. A recent decision of the Supreme Court in State of Uttar Pradesh v. Anurudh & Anr. (2026 INSC 47) is an illustration of today’s social milieu. Despite the fact that the Court technically vacated the blanket instructions of the Allahabad High Court in a Protection of Children Sexual offence (POCSO) bail case, the real carrying of the verdict is a very open and candid afterword in which the Court cogitates on the practical implications of dogmatic statutory interpretation. By so doing, the Court proceeds far beyond the domain of doctrinal adjudication to address the social facts, which lie behind the implementation of child-protection laws in India.
In the post-script, the Supreme Court explicitly conceded the increased abuse of the POCSO Act, in situations of romantic and consensual adolescent relationships. More importantly, it recommended that the Union Government think about bringing narrowly defined, the so-called, ‘Romeo-Juliet’ clause, which certain jurisdictions recognised inter alia the US, Germany, Australia to exempt any close-in-age relationships between adolescents from the severe impact of criminal charges. This observation is one of the most explicit judicial acknowledgements of the conflict between the generality of the criminal law and the particularity of adolescent experience.
Post-scripts of a judicial nature are strange. They neither fix rights and liabilities, nor change the law of operation. However, they in most cases are pointers to something more: Institutional discomfort. The Supreme Court took this space in Anurudh to lament a systemic issue that doctrinal reasoning cannot solve. The Court admitted that even though POCSO was created with the crucial idea of saving children against sexual abuse and exploitation, the strict age-of-consent formula of the law has, in reality, delivered a result of the opposite nature. Such observations cannot be underrated in terms of normative weight. The pronouncements of the Supreme Court are often influential on the legislative agenda, prosecutorial practice, and the rationale of the lower courts. The Court has broken the longstanding policy debate that has been limited to scholarly literature and the discretion of trial courts.
The key issue to the Court is the approach through which POCSO considers any sexual act between minors as exploitative regardless of circumstances, consent or even age proximity. This model breaks down important differences between predation and affection, coercion and companionship into one type of criminality. Consequently, sexual relations between teenagers (typically separated by an year or two) are tried under POCSO . In most instances, POCSO is not called upon by the minor herself but by a parent or a guardian who is likely trying to punish, discourage or break a relationship, which he or she does not approve of. Criminal process thereby turns into a form of implementing the family authority instead of averting the abuses. The post-script by the Supreme Court recognises this fact: That a legislation, which was meant to safeguard children, is being actively used to criminalise teenage intimacy.
Notably, the Court made no efforts at carving an exception to POCSO. Rather it affirmed the constitutional limits of judicial intervention in criminal law reform. Parliament has continued to reserve the power to make substantive changes to offences and exemptions. The role that the Court plays as Anurudh shows is to point out areas of constitutional friction and challenge the legislature to reflect.
This is also noteworthy in itself. It also maintains the separation of powers but acknowledges that strict compliance with the text of the statute cannot replace the democratic discussion of the complex social issues, especially those pertaining to childhood, consent and sexuality.
The proposal of a Romeo-Juliet clause has been widely misinterpreted to mean a watering down of child-protection legislation. The observations provided by the Supreme Court help one understand that this need not be so. These types of clauses, as accepted in other jurisdictions, are specifically limited exemptions only applicable in circumstances where the intercourse is consensual; the difference in age between parties is slight; and has an aspect of pressure, power, and manipulation. More importantly, these clauses do not make sexual exploitation a legal act or reduce safeguards in terms of abuse. Instead, they allow criminal law not to make adolescents predators or victims by default, when neither of the two descriptions applies to the real situation of the relationship.
Another theme in the ruling is that the Court was unhappy with the mechanical approach to POCSO and its use by the police and trial courts. The Court warned against a habitual application of the statute without reviewing the factual situation of the relationship, especially when there are no claims of force, coercion, or manipulation. This is part of a larger problem in criminal jurisprudence, namely that individualised justice may be overshadowed by procedural efficiency and statutory severity. Using the law as a hammer may lead to the creation of a formally legal but substantively unfair result.
The reason behind the thinking of the Court is a slight yet significant difference between the protection and paternalism. These welfare legislations play an important role, nevertheless, they should not be used as the means of social conformity or parental control. The ruling implicitly acknowledges the fact that teenagers have agency and autonomy, a fact that cannot be disregarded in criminal law without any repercussions. The Court, in warning against the confusion between child protection and moral policing, reiterates that criminal law should be concerned with harm and not disapproval.
It is the wisdom of Holmes that ‘the life of the law is not logic but experience’, which is still relevant to Anurudh. The post-script written by the Supreme Court does not undermine POCSO; on the contrary, it makes it more morally justified by encouraging a recalibration to match legal protection with social reality. The ruling initiates a much-needed societal dialogue on the way child-protection legislation might be strong yet not indiscriminate, humane yet not permissive, and authoritative yet not blind. It is yet to be seen whether or not Parliament will take this call. What is evident, however, is that the Court has expressed a truth long obvious on the ground that when general rules disregard the particularities of life, justice is compromised.
This article is authored by Ashok Ramappa Patil, vice chancellor and Sumit Kumar Singh, research assistant, National University of Study and Research in Law, Ranchi.
