Opinion A ‘Romeo-Juliet’ clause in POCSO may be needed to prevent over-criminalisation of behaviour that is developmentally typical
Adolescence is a transitional period, and at some point young people do acquire the capacity to consent to romantic relationships. It does not lend itself to sharp moral/legal cut-offs
At its core, the idea is to craft a law that is attentive to context and responsive to the lived realities of adolescence. If two young individuals are in a consensual romantic relationship but happen to be even one day short of 18, their conduct can still attract severe penal provisions under the Protection of Children from Sexual Offences (POCSO) Act, 2012. Many struggle to accept the logic of treating such adolescents as criminals, especially when it is known from personal experience how common and natural youthful love is.
Those familiar with the criminal justice system also point out how harmful and counterproductive it can be for adolescents to be prosecuted and punished. Judicial relief, when it comes, often arrives only after a child has already been drawn into a damaging process. If these factors on their own were not sufficient to prompt a rethinking of how consensual adolescent relationships are governed, the Supreme Court’s order of January 9 highlights another concern: The widespread misuse and misapplication of the POCSO Act.
The Supreme Court has observed that the problem is systemic, resulting in “the weaponisation of the legislation against young couples in consensual relationships”. The Court notes that age is often misrepresented to bring cases within POCSO’s stringent framework. It also finds that the law is frequently invoked by families seeking to disrupt or punish relationships they oppose. What emerges is a grim picture of recurring lapses across the police, the bar, and the courts, alongside individual misuse of the law. Young people caught in these cases continue to bear serious and lasting consequences of the criminal process.
It is against this backdrop that the Supreme Court has asked the Union government to consider initiating steps to prevent the misuse of the law, particularly, the introduction of a “Romeo-Juliet” clause to exempt genuine adolescent relationships from the rigours of the law. More unusually, the Court has also suggested creating a mechanism to prosecute those who misuse POCSO to settle personal scores. This would amount to introducing a provision within POCSO to penalise the misuse of other provisions of the same law.
While the judicial intent is understandable, it is not clear whether such a measure would add much, given that bringing false criminal cases is already punishable under Section 248 of the Bharatiya Nyaya Sanhita, 2023. The proposal for a Romeo-Juliet clause, however, warrants careful consideration.
A Romeo-Juliet clause, named after Shakespeare’s teenage lovers, originated in jurisdictions such as the United States and parts of Europe to decriminalise consensual sexual activity between certain adolescents. Without lowering the age of consent, such clauses protect young people who are close in age from criminal liability even where one or both may technically be below the legal threshold.
The underlying aim is to retain a robust child protection statute while preventing its distortion into a tool of over-criminalisation. At its core, the idea is to craft a law that is attentive to context and responsive to the lived realities of adolescence.
The Supreme Court’s order can be read as a clear call for the Indian law to accommodate similar nuance if the misuse of POCSO is to be curbed. More broadly, however, questions arise even where there is no misuse in the narrow sense, but merely the routine application of the law. Currently, even affectionate conduct — such as hugging or physical closeness between consenting adolescents on the cusp of 18 — can lead to the registration of an FIR under Section 7 of the POCSO Act. Even in situations involving more intimate consensual sexual activity between adolescents, it is worth asking whether such cases may be better addressed through non-penal responses.
As for the so-called Romeo-Juliet clause, its remit is limited. Nevertheless, it is important to consider whether it is as neat a solution as it seems. Any age-based exemption redraws the line rather than resolve the underlying problem. If consensual intimacy between adolescents aged 16-18 is exempted, what of those just below that threshold? On what principled basis does the same conduct become criminal again in their case?
One way to approach this dilemma is through the classic distinction in criminal law between offences that are mala in se and those that are mala prohibita. Offences that are inherently wrongful, such as violence or exploitation, fall into the former category. Mala prohibita offences, on the other hand, are not wrongful in themselves; they are wrong only because the law declares them so. Consensual intimacy between adolescents generally belongs in this latter category. It is criminalised because of age, not because it is inherently wrongful.
The law rightly treats very young children as incapable of consent, rendering sexual conduct exploitative and therefore both harmful and wrongful. Adolescence is a transitional period, and at some point young people do acquire the capacity to consent to romantic relationships. It does not lend itself to sharp moral/legal cut-offs. From a criminological perspective, this calls for greater restraint in criminalising age-related behaviour that is developmentally typical.
The writer is an IPS officer, currently working as Professor of Practice, Lloyd Law College, Greater Noida, on deputation. Views are personal
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