Opinion In interpreting POCSO law rigidly, the Madras High Court has undermined the agency of youngsters

In the appeal filed by the accused, the Madras High Court, in a gross miscarriage of justice, concluded that the victim did not testify about the sexual activity because she was a “village girl” and “due to shyness or embarrassment”. The Court also considered the hymen not being intact as proof of sexual intercourse, although it is contrary to the ruling in several decisions by High Courts and the Supreme Court and the guidelines issued by the Ministry of Health & Family Welfare. The victim and the accused got married during the pendency of the appeal, and the Court expressly stated that such subsequent marriage would not constitute a valid defence as it would defeat the purpose of the POCSO Act and would lead to “disastrous consequences.”

The Court adopted a literal interpretation of the POCSO Act, concluding that the “POCSO Act is very clear and there is no question of consent or elopement before the age of 18 years.”. The Court proceeded to not only uphold the conviction for kidnapping and wrongful confinement but also overturned the acquittal and convicted the accused under the POCSO Act for sexual assault and sentenced him to 10 years imprisonment.

The Court also opined that when parents arrange a marriage against their will, youngsters are “very well aware” that they can approach the police or seek help from social media. While the Court regards the victim as being a “village girl” who cannot testify about sexual activity, it also presumes that she has the agency to seek the necessary help. All this exposes the systemic hypocrisy against young people, which simultaneously disregards their consent, but also places the onus upon children and young people to protect themselves.

Enfold and Project 39A’s recent three-state study on 264 aggravated sexual assault cases under the POCSO Act revealed that 25.4 per cent of the cases under the POCSO Act were “romantic” in nature. In February, the Directorate of Child Protection of the Government of Karnataka stated that of the 2,456 POCSO cases registered between April and December 2024 in Karnataka, 1206 (49.10 per cent) were related to consensual relationships. While convictions in “romantic” and consensual cases are generally low (3 per cent in the Enfold and Project 39A study) even in the exceptional cases of convictions, the accused face prolonged periods of imprisonment as minimum sentences for penetrative sexual offences under the POCSO Act range from 10 years to 20 years and extend to life imprisonment or even death, in case of aggravated offences.

Recognising severe consequences posed by the criminalisation of consensual sexual cases, several high courts have provided relief to the accused persons by allowing appeals from convictions, quashing ongoing trials, and granting bail, recognising the normative nature of adolescent sex, the lack of exploitation, and the catastrophic impact of the law on young people. The Karnataka High Court in Aarush Jain vs State of Karnataka [2022] highlighted the life-long stigma attached to such criminalisation noting that “the future of a student would be put to insurmountable jeopardy” and that “no useful purpose would be served by sending the boy to face the rigmarole of criminal trial, on the allegation of provisions of the POCSO Act, as the boy who would be eventually acquitted, would become persecuted of the alleged crime for all his life.”

Concerns have also arisen regarding whether such criminalisation was the objective of the law, with the Madras High Court in Vijayalakshmi vs State [2021] stating, “Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act.” The Delhi High Court in State vs Hitesh [2025] 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. The law should evolve to acknowledge and respect these relationships, as long as they are consensual and free from coercion.”

The continued criminalisation of young people in consensual and non-exploitative sexual acts should make us question the usage of criminal law to regulate teenage behaviour and deprive adolescents of their dignity and liberty.

The writer is Associate Director, Research, at Enfold Proactive Health Trust