Love on trial no more

PETER F BORGES

For over a decade, courts, activists, and researchers have been warning that POCSO — a law crafted to protect children from sexual offences — has been weaponised against adolescents in consensual relationships. And now, with the apex court finally stepping in, India stands at the brink of long-overdue reform.

Let’s be honest: the misuse wasn’t a tiny glitch in the system. It had grown into a full-blown crisis. Data from legal analyses and case reviews show that nearly one in four POCSO cases in some states involve consenting adolescents, often booked because families disapproved of the relationship, especially when caste or community boundaries were crossed. One national analysis notes that 80% of such cases were filed by the girl’s parents, not because a crime occurred, but because teenage love offended adult sensibilities.

The court has now acknowledged what ground-level social workers and researchers have seen for years: the problem isn’t adolescent behaviour — it’s adult panic and misuse of the law.

The foundation of the Supreme Court’s call is simple but profound: you cannot use a child-protection law to punish two young people for being in a relationship. The judgment also makes another strong point — courts cannot turn bail hearings into “mini-trials,” cannot order mechanical age-determination tests at will, and cannot allow medical boards to become tools for manipulating age to suit accusations. The determination of age, the court said, must happen during trial, not at the bail stage — shutting down a pattern where boys were jailed for months simply because someone produced a conveniently altered school certificate.

But the conversation is deeper. Under POCSO, consent does not exist if one party is below 18. The law treats a 17-year-old as incapable of consenting, but magically grants full sexual agency the moment that person turns 18. As one study frames it, it makes no sense that “a person who is 17 years and 364 days old is considered incapable of understanding their actions, but one day later, they become fully competent.”

This rigid legal line, meant to prevent exploitation, ends up blurring the difference between abuse and adolescent curiosity, exploration, and romance. POCSO’s drafters likely never imagined lakhs of Indian teenagers would become internet-native, mobile-savvy, relationship-forming young people overnight. But adolescence today comes with new realities: online interactions, greater autonomy, exposure to information, and shifting norms around identity and sexuality. Yet the law pretends that teenagers are frozen in time — naïve, unaware, passive, and incapable. The Supreme Court, in this decision, clearly signals that the law must evolve with society.

The most compelling arguments for a Romeo–Juliet clause come not from foreign laws alone but from India’s own contradictions. Indian law sets 18 as the age of consent, but also places enormous emphasis on abstinence before marriage. That tension has produced a bizarre outcome: criminal law has become a policing tool for parents, not a protection framework for children. Researchers from NALSAR note that by equating sex exclusively with marriage, families push adolescents into early marriage to avoid “legal trouble,” especially for girls. In this sense, POCSO has unintentionally strengthened patriarchal control, not weakened it.  The Supreme Court’s direction tries to break that cycle.

A Romeo–Juliet clause — sometimes called a close-in-age exemption — acknowledges that two minors of similar age are not in a predator–victim dynamic, even if they engage in romantic or sexual exploration. Countries like Canada, Australia, and several U.S. states have adopted versions of these laws. Some allow a three-year age gap, others five years, with strict safeguards that protect against coercion or exploitation. The spirit behind these laws is consistent: protect children from predators, not from each other.

The proposal for India, supported by legal scholars, suggests a minimum age of 16 and maximum three-year age gap — a framework that could be customised for Indian conditions. This isn’t liberalisation of morality. It is protection from misuse, grounded in research, constitutional values, and child psychology.

And the psychology matters. Adolescence is a phase of hormonal, emotional, and cognitive transformation. The National Judicial Academy paper highlights that it is a period of curiosity, attraction, identity exploration, and boundary-testing — all normal, all expected. To criminalise this phase is to criminalise development itself. As the paper notes, “understanding teenage love needs sensitivity,” not strict statutory rigidity, because these relationships cannot be evaluated through law alone.

But the tragedy of the current system is that trial courts don’t have the freedom to exercise that sensitivity. POCSO prescribes mandatory minimum sentences — often 10 years — giving trial judges no room to distinguish a predator from a boyfriend. This forces harsh outcomes even when the couple later marries or continues their relationship as adults. The Supreme Court judgment references how appellate courts often correct these injustices, but by then, the damage — jail, stigma, social isolation — is irreversible.

The push for reform isn’t about encouraging teenage sexuality. It’s about recognising reality: adolescents are already in relationships, already exploring identity, already online, already forming attachments. Criminal law cannot act like none of this exists. Worse, it cannot keep harming those it claims to protect.

The Supreme Court’s intervention is also a wake-up call for policymakers who have avoided this conversation. The Law Commission previously refused to consider lowering the age of consent, despite admitting miscarriage of justice was happening. Now, with clear judicial direction, Parliament must navigate the balance between protection and autonomy. That balance will not be easy — India’s layered social norms, gender disparities, caste dynamics, and parental anxieties will all influence the debate. But a nuanced clause, grounded in consent, age difference, testimony of the adolescent, and safeguards against coercion, can be crafted.

In the end, the Court has said what many were afraid to say: POCSO cannot remain untouched when it is causing harm. Protecting children must always be the priority — but that protection must be intelligent, evidence-based, and sensitive to adolescent development. Criminal law should punish offenders, not lovers.

The judgment marks a turning point. Whether India seizes this moment to build a rational, compassionate, modern framework for adolescent relationships will determine whether we continue destroying young futures in the name of protection — or finally choose justice that sees teenagers as human beings, not legal anomalies.

(The writer is an assistant professor of Social Work, Goa University and founder, Human Touch Foundation. He has served as the chairperson of the Goa State Commission for Protection of Child Rights)