Answer

Introduction

India’s current framework (POCSO, 2012; BNS) fixes 18 years as the age of consent, criminalising all sexual activity below it. Courts, rights activists and policy bodies now confront a recurring reality: many cases involve consensual relationships between 16–18-year-olds, who are then prosecuted as offenders. The resulting conflict between child protection and adolescent autonomy has triggered calls for nuanced reform, including limited carve‑outs and guided judicial discretion.

Body

Why fixing an ‘appropriate’ age of consent is inherently complex in India

• Binary law vs. graded adolescent maturity: A single cut-off at 18 collapses varied maturity levels within 16–18 into one undifferentiated “child” category.
  Eg: Under Section 2(d) POCSO, a 16-year-old is a “child”, hence her consent is legally irrelevant, criminalising even voluntary relationships.
• Protection intent vs. persecution of consensual relationships: Laws designed to stop abuse are increasingly used against non-exploitative adolescent relationships.
• Law Commission’s caution vs. courts’ pragmatism: Policymakers resist lowering the threshold but accept case-by-case mitigation.
  Eg: Law Commission (2023) opposed changing the age, but recommended “guided judicial discretion” in sentencing for consensual 16–18 cases.
• Socio-cultural diversity complicates uniformity: Different communities view adolescent sexuality, marriage, and autonomy differently, making a one-size-fits-all threshold blunt.
  Eg: Madras HC in Vijayalakshmi v. State (2021) suggested less than 5-year age-gap in consensual relationships to avoid exploitation of “impressionable” minors.

Risks & unresolved concerns in diluting / redefining the threshold

• Possibility of masking coercion as consent: Relaxation could be misused by older partners or families to legitimise exploitation.
  Eg: The Madras HC’s 5-year age-gap cap was precisely to prevent older adults exploiting teenagers.
• Implementation asymmetries: Discretion-heavy solutions risk uneven judicial outcomes and local bias.
• Undermining the protective core of POCSO: Any exception must avoid weakening POCSO’s strong victim-centric, strict liability character.
• Parental / community weaponisation: Families may still invoke POCSO to police inter-caste/inter-religious adolescent relationships.
• Administrative & policing burdens: Differentiating “consensual” from “exploitative” requires trained investigators, child psychologists, and clear evidentiary standards.
  Eg: The Law Commission’s “guided discretion” model presumes capacity that many trial courts lack.
  

A calibrated path to balance child protection with adolescent rights

• Retain stringent penalties for coercion, deception, power-imbalance: Preserve POCSO’s severity where force, authority, trafficking, or marriage coercion exists.
• Operationalise ‘guided judicial discretion’ with bright-line tests: Translate Law Commission (2023) advice into clear statutory criteria: age-gap, voluntariness, absence of intimidation, etc.
• Mandatory adolescent legal-literacy modules: Integrate POCSO/BNS awareness, consent education, and digital safety into schools and youth programs.
  Eg: Need to educate adolescents about the law and consequences.
• Independent review & monitoring mechanism: Establish a statutory oversight body to audit POCSO prosecutions involving 16–18-year-olds, track outcomes, and recommend course corrections.
  

Conclusion

India’s challenge is not to abandon child protection, but to stop criminalising consensual adolescent intimacy. A narrow, criteria-based exception for 16–18-year-olds, guided judicial discretion, and strict retention of harsh penalties for exploitation can align the law with developmental science, constitutional autonomy, and the protective spirit of POCSO. The aim must be protection without persecution.

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