Opinion Adolescence, love and POCSO: Intimacy must not be criminalised

Indian Express

05-05-2025

As far as cautionary tales about unintended consequences in criminal justice go, the Protection of Children from Sexual Offences (POCSO) Act, 2012 has its share to offer. The primary purpose of the Act is to prevent and punish sexual exploitation and sexual abuse of children. But its provisions are so rigid that adolescents or teenagers consensually engaged in romantic sexual relationships are themselves not spared severe punishment. On top of criminalising such children, the law also criminalises 'any person' (therefore, potentially, other children too) who knows about their 'crime' and yet fails to report it to the police. Although many, including courts and experts, believe that bringing an arguably vast swathe of the population within the penal ambit could never have been the intention of lawmakers, the law on consensual cases and mandatory reporting remains unchanged.
Amid concerns surrounding this status quo, the Supreme Court is reportedly going to take up the matter of mandatory reporting of even voluntary sexual activity (if either or both parties are under 18) on May 8. According to reports, the Court in Nipun Saxena vs Union of India has recognised the issue as 'serious and relevant' and agreed to hold a detailed hearing on it.
This raises hopes for a more progressive and principled approach to consensual POCSO cases than has been possible so far. When dealing with alleged sexual offences arising out of adolescent love affairs, different high courts have naturally found it unconscionable in several instances not to provide relief to the children concerned by dismissing or quashing cases against them. While this shields those children from ongoing criminalisation, it can neither undo the damage already done nor protect them from future consequences of contact with the criminal justice system.
Moreover, it can be argued as a counterfactual that more than the courts' liberal stance in cases that have made their way to them, many adolescents in positive intimate relationships might possibly have been saved by the law's non-enforcement against them by the police. One need only imagine how grotesquely the number of cases could soar if the police were to prioritise detecting these relationships and filing criminal cases. Similarly, a concerted campaign by the police to book a wide range of individuals — including guardians and medical professionals whose knowledge about such relationships may come from providing vital care to the parties — for the offence of failure to report could again have brought the situation to a head. In other words, rather counterintuitively, non-implementation of the contentious provisions by the police might actually have prevented the issue from boiling over. That said, the problem clearly calls for a more sustainable and well-considered response. Therefore, the Supreme Court's engagement with it assumes considerable significance.
Going forward, much will depend on how the problem is constructed, framed, and defined. There are at least three paths to consider. The first is to take a solution-oriented, but hands-off approach. From this perspective, consensual POCSO cases and their mandatory reporting stem from overcriminalisation — the excessive use of criminal law to regulate adolescent behaviour. Considering that love affairs among adolescents are commonplace and criminalising them appears more detrimental than beneficial, this approach favours decriminalisation and non-intervention. The second way is also solution-oriented and pro-decriminalisation, but in contrast to the first, it adopts an interventionist approach. It advocates replacing blunt criminal justice/penal responses with individualised ones that focus on education, counselling, and behaviour modification. The third way seeks to frame the issue in terms of adolescents' development, rights, and autonomy. It is underpinned by the understanding that adolescence constitutes a critically significant developmental stage marking the transition from childhood to adulthood. Adolescents experience an array of physical, psychological, and emotional changes. The inclination to explore, experiment, and exercise independence is regarded as integral to their developmental process. Many experts think that romantic relationships among adolescents are both natural and advantageous for their self-esteem and general well-being. In light of these considerations, the third perspective suggests acknowledging respectful sexual activity among adolescents as part and parcel of their right to healthy development.
A judgment of the Delhi High Court earlier this year exemplifies the rights-based approach to the issue. In State vs Hitesh, the Court observed, '…societal and legal views on adolescent love should emphasise the rights of young individuals to engage in romantic relationships that are free from exploitation and abuse. Love is a fundamental human experience, and adolescents have the right to form emotional connections.' Through this lens, the right of children to develop deep emotional bonds is complementary to the right the POCSO Act recognises, namely, the right against sexual abuse and exploitation. In other words, the empowerment of adolescents should be seen as essential to their protection.
One of the most talked-about Netflix series of 2025, Adolescence, explores themes that reflect the necessity of a nuanced and well-considered approach to adolescent love, desire, and vulnerability in a digitally mediated world. The show centres on 13-year-old Jamie, who was arrested for the suspected murder of his classmate Katie Leonard. The investigation uncovers how Jamie had descended into emotional turmoil with his exposure to social isolation, toxic masculinity, and online radicalisation. It also delivers a critique of parental care and the school system for not being sufficiently empathetic and responsive. A key lesson from the show is the need for open and supportive conversations about sex, relationships, and consent. Pathologising or criminalising adolescent desire is clearly not advisable.
The problem with the first way is that while decriminalisation of consensual and non-exploitative sexual activity of adolescents will be good, it will be inadequate. The issue with the second way is that interventions such as counselling, although well-meaning and benign in appearance, can end up pathologising behaviours that are actually normal. On the other hand, the third way has the potential to foster a rights-based and healthy environment for adolescents while also addressing overcriminalisation.