§ Why these cases are difficult

• The law has no gradation by the age of the accused or the nature of the relationship. A consensual relationship between a seventeen-year-old girl and a nineteen-year-old boy is, in law, penetrative sexual assault under Section 3, punishable with a minimum of ten years.

• Where both are minors, the boy is a child in conflict with law under the Juvenile Justice Act, and the girl is at once the victim and a participant.

• The complainant is usually not the victim. The prosecution is commonly driven by the family, sometimes to end a relationship across caste or religion, and the girl frequently supports the accused at trial.

• Mandatory reporting reaches the clinic. Section 19 requires a doctor who learns of sexual activity by a minor to report it, which can deter adolescents from seeking medical care, including for pregnancy.

Bail

The nature of the relationship, the ages of the two, the absence of force, and the victim's own statement have been weighed in favour of bail

It decides nothing about guilt

Proof of age

Where the prosecution fails to prove the victim was below eighteen, POCSO does not apply and the case falls to be judged under the general law

A legitimate ground, but it depends on the evidence, not on the relationship

Appreciation of evidence

Where the victim does not support the prosecution and there is no other evidence of the act, the prosecution may fail on the facts

It turns on the record in each case

Quashing on settlement

Some High Courts have quashed proceedings under Section 482 of the old Code, now Section 528 of the BNSS, after the couple married or the families settled

Contested: the offences are not compoundable, and the Supreme Court has held that heinous offences are not to be quashed on compromise

Article 142

The Supreme Court alone may mould relief to do complete justice in an exceptional case

Available only to the Supreme Court, and expressly not a precedent

📖 Gian Singh v. State of Punjab, (2012) 10 SCC 303

The Supreme Court considered when a High Court may quash criminal proceedings on the basis of a settlement between the offender and the victim. It held that the inherent power may be exercised where the offence is predominantly civil or private in character, but that heinous and serious offences of mental depravity, including rape, cannot be fittingly quashed even though the victim and the offender have settled, because such offences are not private in nature and have a serious impact on society.

Rule: a POCSO offence is of this kind. Settlement between the families, or a later marriage, does not by itself justify quashing, which is why High Court decisions quashing such cases are open to challenge.

§ In Re: Right to Privacy of Adolescents (2024)

The High Court's approach. The Calcutta High Court had acquitted an accused in a case arising from a relationship with a minor, and in doing so made general observations about the sexual conduct expected of adolescent girls.

The Supreme Court's response. Taking up the matter of its own motion, the Supreme Court set aside the acquittal, holding that a court cannot rewrite the statute or decide the case on considerations the law does not permit, and disapproved the observations as inappropriate for a judgment.

What followed. The Court directed attention to the welfare of the victim, and to the need for sex education and support for adolescents, recognising that the difficulty lay in the circumstances and not in any licence to depart from the law.

The lesson for an answer. The courts may use every tool the law provides, but they may not treat consent as a defence where Parliament has made it irrelevant. Reform, if any, is for Parliament.

§ Access to medical care

The difficulty. Section 19 obliges a registered medical practitioner who learns that a minor is sexually active to report it, which may deter a pregnant adolescent from seeking a lawful termination.

The Supreme Court's answer (2022). In a judgment on the Medical Termination of Pregnancy Act, the Court held that, so that a minor is not deterred from seeking a safe termination, the practitioner making the report under Section 19 need not disclose the identity and personal details of the minor, where the minor and the guardian so request.

The significance. The reporting duty is preserved, but read so that it does not defeat the child's access to health care.

The Act criminalises consensual conduct between adolescents, which it was not designed to reach

A lower age would weaken the protection against child marriage and trafficking

It is used by families to punish relationships they disapprove of, especially across caste or religion

Consent at sixteen may be manipulated or coerced, and a bright line does not require the child to prove it was not

It deters adolescents from medical care because of mandatory reporting

Any exception would be exploited by adult offenders who groom a child

Many legal systems use a close-in-age exemption, where neither party is much older than the other

A uniform age protects every child equally, and the problem is better met in sentencing than in the definition of the offence

§ The Law Commission's middle course

Report No. 283 (2023) advised against reducing the age of consent from eighteen.

It proposed instead guided judicial discretion in sentencing where the child is between sixteen and eighteen and there was tacit approval, so that a court could take into account the closeness in age, the nature of the relationship and the absence of any exploitation.

The structure of the proposal matters. It leaves the offence untouched and works only on sentence, which answers the objection that any change to the definition would open a route for genuine abusers.