Consent At The Crossroads: Reforming POCSO Act For A Changing World

Policing Consent: The Deep-Rooted Control Over Female Sexuality in Indian Society and the Law:

Indian society and its legal framework have long been entrenched in a patriarchal mindset that seeks to regulate and control female sexuality under the garb of protection and tradition. This control manifests starkly in the law's treatment of consent, particularly in how it relates to two distinct groups of women: minors and married women. In both cases, the autonomy of women and adolescent girls over their bodies is systematically denied, revealing the hypocrisy of a legal system that claims to safeguard them while perpetuating their subjugation.

Under the POCSO Act, any sexual act involving a person below the age of 18 is automatically classified as statutory rape, regardless of whether the act was consensual or not, as they are deemed incapable of giving valid consent to sexual activity. While the stated intention of the law is to protect minors from exploitation, its rigid application often results in the criminalisation of consensual adolescent relationships, particularly when such relationships challenge caste, class, or religious norms. The law thus becomes a weapon not against abusers, but against young individuals, exercising agency over their bodies.

In glaring contrast, when it comes to married women, the law swings to the opposite extreme. It presumes perpetual consent. Marital rape is not recognised as a criminal offence in India. The rape laws in India specifically exempt sexual intercourse by a man with his wife, provided she is not under the age of 18, from the purview of rape. This legal position reinforces the archaic notion that marriage is a contract that grants the husband unrestricted sexual access to his wife's body. The woman's autonomy, dignity, and right to say "no" are erased under the pretext of preserving the sanctity of marriage. The law thus upholds the belief that once a woman enters into matrimony, her right to consent is extinguished.

This dual approach reveals a troubling contradiction: that the same legal system, on one hand, infantilises young girls to deny them sexual agency and, on the other hand, strips adult women of their autonomy once they become wives. In both instances, the law's paternalism reduces female sexuality to something that must either be controlled or surrendered, but never owned.

Age of consent under the POCSO Act and its Legal implications:

The Act lays down stringent provisions to criminalize different forms of sexual offences against children. Section 2(1)(d) of the POCSO Act, a 'child' is defined as any individual under the age of 18. Chapter 2 of the Act provides a list of sexual offences- penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, and sexual harrasment, made punishable under the act, when committed against a minor.

None of the aforementioned provisions mention that those acts that are stipulated to be offences must be non-consensual, in turn deeming minors to be incapable of giving consent i.e., giving the permission for something to happen or agreement to do something out of one's own will^[1]. Unlike the Bhartiya Nyaya Sanhita, 2023, which primarily focuses on non-consensual sexual acts, the POCSO Act criminalized all sexual activities involving minors, irrespective of consent, in its attempt to safeguard children from any form of exploitation.^[2]

According to the Act, any sexual activity involving a person under the age of 18 is automatically considered an offence, irrespective of whether there was mutual consent. This blanket criminalization disregards an important aspect of adolescent development—their ability to explore relationships, emotions, and sexuality in a natural and consensual manner, arising from the most basic of human feelings. Regardless of how often the victim asserts that the act was consensual and expresses a desire to remain with the accused, the POCSO Act disregards their statements, ultimately mandating conviction.

Instead of shielding the children from harm, such rigid legal interpretations result in unnecessary criminalization, where adolescents engaging in consensual relationships face legal prosecution, with one partner often being labelled as an offender despite both being legally classified as children, due to the rigours of the law. It also leads to stigmatization and trauma, causing emotional distress and social stigma to those involved. For an Act that claims to protect the rights of children, it must also ensure that it does not become a tool of injustice against them.

Furthermore, while the POCSO Act is written as gender-neutral, its enforcement tends to be gendered. In most cases, the adolescent girl is placed under the care of the Child Welfare Committee as a victim, whereas the adolescent boy is sent to the Juvenile Justice Board and subjected to legal proceedings as an accused.

The issue becomes even more complex when one individual in the relationship is a minor and the other is above 18 years of age. In such cases, even if the relationship is entirely consensual and free from coercion, the older partner is automatically deemed a perpetrator, and the minor is treated solely as a victim under the law. This absolute approach denies adolescents any agency over their personal choices, assuming that they are incapable of making informed decisions about their own relationships. It disregards the nuances of human relationships, where emotional bonds do not always adhere to strict legal classifications. As a result, many young adults, often barely crossing the legal threshold of adulthood, find themselves facing serious legal consequences for engaging in a relationship that was entirely consensual and emotionally meaningful for both parties involved in the relationship.

It is important to recognize that the consequences of such criminalization extend beyond the accused and significantly impact the victim as well. Victims often endure social stigma, academic setbacks, and the emotional strain of navigating the legal system.

Restricting the consequences of criminalization under the POCSO Act to just legal and social aspects would be an oversimplification. Such criminalization also endangers adolescents' access to healthcare, increasing the likelihood of unsafe abortions and, in some cases, leading to neonatal and maternal deaths.

Cognitive Development and Its Role in Adolescent Sexual Choices

In paragraphs 15-16 of the judgement in Vijayalakshmi & Anr v State Rep. by the Inspector of Police^[3], commenting on the cognitive development of adolescents, it was observed as follows:

“15. It is only relatively recently that neurobiologists have started to probe into the neural basis of one of the most powerful and exhilarating states known to humans, namely love. Studies largely show that the basic human motivations and emotions arise from distinct systems of neural activity and that these systems derive from mammalian precursors. Thus, it is only natural that this mechanism is also active in Homo Sapiens, i.e. humans. Adolescence is associated with many psychosocial and developmental challenges, including the processing of intense emotions and “first loves”. (Arnett J.J. Adolescence and Emerging Adulthood. Pearson Education Limited; New York, NY, USA: 2014.) It is now well evidenced that adolescent romance is an important developmental marker for adolescents' self-identity, functioning and capacity for intimacy. Developmental-contextual theories of adolescent romantic stages also provide a framework for how romantic relationships assist young adults with addressing their identity and intimacy needs. Therefore, the age of adolescence as can be seen evidently, is one associated with an amassing change in the neurological, cognitive and psychological systems of a person and one of the most important aspect is that the individual tries to establish their identity, develops emotional and biological needs during this period as a result of which the individual tends to look for new relationships, bonding and partnership. It is also important to acknowledge, in addition to this, the vast exposure that is available to adolescents and youth in the form of digital content that plays a major role in influencing their growth and identity.

16. In light of the above, it is only natural that there are cases of the above-mentioned nature that are on the rise at present, and it does not help matters to avoid acknowledging that society is changing and influencing people's identity and cognition, constantly. Therefore, painting a criminal colour to this aspect would only serve counter-productively to understanding biosocial dynamics and the need to regulate the same through the process of law.^[4]”

A study on the role of experience in adolescent cognitive development^[5], published in the Neuroscience Behaviour Review in the year 2016 itself, reveals that adolescence is a stage where teenagers display immense curiosity and a strong desire to seek new and exciting experiences. This has been attributed partly to their prefrontal cortex, the part of the brain that helps with planning and decision-making, developing rapidly. The Experience-Driven Adaptive Cognitive Model enumerated in the study explains how teenagers combine their growing ability to plan with the use of past experiences, which helps them create smart strategies for adult life^[6].

The research also shows that while the hippocampus and prefrontal cortex work before adolescence, their stronger connection during this stage pushes teens to seek out more experiences, which is necessary for developing adult-level thinking and decision-making^[7].

The study, in clear terms, spells out the fact that though in early childhood, planning skills are not fully developed, warranting children to seek guidance, by adolescence, they have collected many experiences and their prefrontal cortex has matured enough to allow independent planning and decision-making. At this point, the brain shifts from simply collecting experiences to organising and selecting them to shape future actions^[8].

While adolescent brains continue to develop, they are not devoid of rational decision-making abilities. The exposure to digital content, evolving social dynamics, and the natural drive for companionship further shape their understanding of relationships. Criminalising such natural developmental behaviours disregards the cognitive agency that adolescents do exhibit. Therefore, while vulnerabilities exist, the notion that adolescents are entirely incapable of providing informed consent is an oversimplification that fails to account for their evolving cognitive and emotional capacities.

Therefore, the evidence of both enhanced cognitive capacity and a natural developmental drive for emotional and romantic bonds indicates that adolescents can make informed decisions about romantic relationships, understanding their implications and giving meaningful consent.

Drawing Parallels Between The Age Of Criminal Responsibility And The Age Of Consent:

The criminal law on children and juveniles is based on the principles of Doli Incapax and Doli Capax. Doli incapax is defined as 'incapable of evil' or 'incapable of committing an offence'^[9]. In contrast, doli capax means one who can “discern between good and evil at the time the offence occurred^[10].

The principle of doli incapax, which translates to “incapable of evil^[11],” is a long-standing legal concept that applies to individuals or entities deemed incapable of committing a crime due to their inability to form criminal intent (mens rea)^[12]. Historically, this doctrine originated in the 14th-century common law, where judges employed "right and wrong" tests to evaluate whether a child possessed the cognitive ability to differentiate between acceptable and unlawful behaviour at the time of the alleged offence^[13]. This assessment was crucial in determining whether it was justifiable to subject a child to the complexities and responsibilities of the legal system^[14]. This principle has been adhered to by the Bhartiya Nyaya Sanhita, 2023, for children below the age of seven, as it provides that: “Nothing is an offence which is done by a child under seven years of age.^[15]”

Likewise, the principle of Doli capax has also been adhered to by the Bhartiya Nyaya Sanhita, 2023, for children between the age of 7 and 12, as it provides that: “Nothing is an offence which is done by a child above seven years of age and under twelve years of age, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.^[16]”

Neither the Bhartiya Nyaya Sanhita, 2023, nor the Juvenile Justice (Care and Protection of Children) Act, 2015, accords any such protection to children between the ages of 12 and 18, thereby deeming them capable of committing offences. Moreover, as per the Juvenile Justice (Care and Protection of Children) Act, 2015, when a child who is sixteen years of age or older is accused of committing a heinous offense, the Juvenile Justice Board must carry out a preliminary evaluation for determining the child's mental and physical capacity to engage in such an act, their ability to comprehend its consequences, and the surrounding circumstances under which the alleged offense took place. Based on this evaluation, if the board deems that the child in conflict with the law had sufficient cognitive abilities to commit the crime, they would be tried and punished as adults^[17].

This legal framework governing children in India presents a glaring contradiction: that is, despite recognising the cognitive and moral capacity of adolescents engaging in criminal behaviour and facing severe legal consequences, the law paradoxically denies them the ability to provide informed consent in matters of personal relationships. This inconsistency raises serious concerns about the rationale behind India's age of consent laws. If a 16-year-old can be held responsible for crimes as severe as murder or sexual assault and even be punished like an adult, it is contradictory to suggest that the same individual lacks the cognitive ability to give consent in a romantic relationship. Such a legal stance reflects an inherent hypocrisy in acknowledging adolescent agency when it comes to crime and punishment, but denying it in the context of personal autonomy and relationships.

Legal Reforms:

The legal contradiction surrounding adolescent capacity in India makes a compelling case for lowering the age of consent to at least 16, if not lower, while ensuring appropriate safeguards against abuse. If the criminal law of the country deems individuals aged 16 and above capable of understanding the gravity of heinous offences, standing trial, and even facing adult punishments, it is inconsistent to claim that the same individuals lack the mental and emotional maturity to give informed consent in personal relationships. The law cannot selectively recognise adolescent cognitive capacity in criminal liability while denying it in matters of personal autonomy.

A more rational approach would be to acknowledge that adolescents, particularly those above 16, are capable of making informed choices in relationships, just as they are deemed capable of making choices in criminal contexts. Lowering the age of consent to 16, while still ensuring safeguards against coercion and abuse, would align India's laws with both developmental science and global legal trends. Herein, though the presumption is that adolescents above the age of 16 are capable of giving consent, when it is claimed otherwise, the same would, without any doubt, be classified as abuse and would attract punishment. Therefore, only the blanket presumption is negated and not the safeguards.

Furthermore, the introduction of a Romeo and Juliet clause, used by numerous nations, which functions as an exception to the offence in case the consenting adolescents are close in age^[18]. The primary aim of this clause is to prevent the harsh punishment of young individuals who willingly and knowingly participate in sexual activity, thereby reducing the legal consequences typically associated with statutory rape in such cases^[19]. These laws are typically applied in situations where the individual deemed the "offender" is around eighteen or nineteen years old, while the "victim" is approximately fifteen or sixteen^[20]. These laws can also eliminate legal responsibility when all individuals involved in a sexual act are minors. Most of the countries follow a 3-year close-in-age clause, that is, if the age difference between the consenting participants to a romantic relationship is 3 years or less, they must automatically be exempted from criminal liability.

This would ensure that consensual relationships between two adolescents who are close in age do not fall within the ambit of statutory rape, providing an amicable solution to the case at hand. This clause would prevent undue criminalisation of young individuals engaged in non-exploitative, mutually consensual relationships, a concern that has become increasingly relevant due to the misuse of the POCSO Act in prosecuting teenage relationships. By refining the law to distinguish between abuse and genuine adolescent autonomy, India can take a more balanced approach that safeguards minors from harm while also respecting their evolving capacities and rights.

A study examining the operation of Special Courts under the POCSO Act in Maharashtra revealed that in 80.2% of cases, parents lodged complaints after their children had run away with a partner. This data suggests that a significant portion of the POCSO cases do not arise from incidents of sexual exploitation but rather from parental objections to consensual relationships. These objections often stem from factors such as disparities in social status, caste, or religion between the individuals involved^[21].

It is accepted that a line has to be drawn somewhere and a particular age must be set as the marker of consent, but the same should not lead to completely disregarding consent when the relationships fall below that age bracket.

Although higher courts have exercised judicial discretion in cases involving consensual adolescent relationships under the POCSO Act, such discretion is not a substitute for reducing the age of consent to sixteen. In the absence of a clear legislative mandate, this reliance on judicial interpretation creates scope for disparity, with outcomes varying across benches and jurisdictions.

Numerous instances have arisen where trial courts, bound by the strict wording of the statute, have convicted individuals engaged in consensual relationships with minor girls aged sixteen to eighteen, only for the High Courts to overturn these convictions later, often leading to prolonged incarceration, causing irreversible harm to young lives. Even otherwise, many adolescent boys/ young male partners of adolescent girls often spend an epoch of their youth as undertrial detainees. The current legal framework presumes that any sexual relationship involving a minor is non-consensual, compelling adolescents and their partners to depose before multiple judicial forums to prove otherwise, even when both firmly assert mutual consent, which could have a profound and prolonged impact on their psychological well-being.

A legislative reduction of the age of consent, or the carving out of a statutory exception for consensual adolescent relationships, would prevent this unnecessary criminalisation and spare minors and young adults the ordeal of extended legal proceedings. Importantly, such a reform would not dilute protections for minors, as cases of abuse or harassment involving individuals aged sixteen to eighteen would still fall within the Act wherever the relationship is claimed to be non-consensual or coercive.

What is sought is not a compromise on the safety of adolescents, but rather an exception in the law to provide scope for acknowledgement of capacity to give consent, in cases wherein consent is proved beyond reasonable doubt.

Suggestions:

1. A legislative reduction of the age of consent from 18 to 16, aligning India with the majority of global jurisdictions.
2. For adolescents aged 12–16, a provision to be included in the POCSO Act itself, providing for the adoption of a case-by-case analysis, allowing courts to assess consent based on cognitive maturity, intent, and relational dynamics rather than relying on a blanket presumption of incapacity.
3. Additionally, this paper calls for the introduction of a “Romeo and Juliet” clause in the POCSO Act to protect consensual relationships between minors who are close in age, from criminalisation. This would allow the judiciary to differentiate between exploitation and genuine mutual affection.

Author is Advocate practising at the Madurai Bench of Madras High Court. Views Are Personal.

References:

1. Oxford English Dictionary (2nd edn, Oxford University Press 1989). ↑

2. Ekta Bansal, Age of Consent Law under the POCSO Act: Whether It Is a Boon or Bane for the Society, 6 INT'l J.L. MGMT. & HUMAN. 1118 (2023). ↑

3. Vijayalakshmi & Anr v State Rep. by the Inspector of Police, 2021 SCC OnLine Mad 317. ↑

4. Id. ↑

5. Murty, V. P., Calabro, F. & Luna, B., The Role of Experience in Adolescent Cognitive Development: Integration of Executive, Memory, and Mesolimbic Systems, 70 Neurosci. & Biobehav. Rev. 46 (2016). ↑

6. Id. ↑

7. Id. ↑

8. Id. ↑

9. R v T [2009] UKHL 20 and Crime and Disorder Act 1998, s 34. ↑

10. R v JTB [2009] UKHL 20, para. 8. ↑

11. Hannah Wishart, “Was the Abolition of the Doctrine of Doli Incapax Necessary”, (2012) 1 UK Law Students' Review 50. ↑

12. Britannica, “The Editors of Encyclopaedia, 'Mens Rea' ”, Encyclopedia Britannica (britannica.com, 21-3-2024) ↑

13. Hannah Wishart, “Was the Abolition of the Doctrine of Doli Incapax Necessary”, (2012) 1 UK Law Students' Review 50 ↑

14. Arjun V. Harihar, Need to Revisit the Doli Incapax Doctrine in India, SCC Online (Sept. 24, 2024), https://www.scconline.com/blog/post/2024/09/24/need-to-revisit-the-doli-incapax-doctrine-in-india/. ↑

15. Bhartiya Nyaya Sanhita, 2023, § 20. ↑

16. Bhartiya Nyaya Sanhita, 2023, § 21. ↑

17. Juvenile Justice (Care and Protection of Children) Act, 2015, § 15 & 18(3). ↑

18. Jordan Franklin, Where Art Thou, Privacy?: Expanding Privacy Rights of Minors in Regard to Consensual Sex: Statutory Rape Laws and the Need for a "Romeo and Juliet" Exception in Illinois, 46 J. MARSHALL L. REv. 309, 317 (2012). ↑

19. Angela D. Minor, Sexting Prosecutions: Teenagers and Child Pornography Laws, 60 How. L. J. 309, 321 (2016). ↑

20. Danielle Flynn, All the Kids Are Doing It: The Unconstitutionally of Enforcing Statutory Rape Laws Against Children & Teenagers, 47 NEw ENG. L. REv, 681,687 (2013). ↑

21. HAQ: Centre for Child Rights, Implementation of the POCSO Act: National Consultation Report (Apr. 2019), https://haqcrc.org/wp-content/uploads/2019/04/pocso-national-consultation-report-april-2019.pdf. ↑