The Supreme Court will hear a key case on August 20 to decide whether the age of consent under the POCSO Act should be lowered or if exceptions can be made for consensual teenage relationships under the current law.
The Supreme Court heard an important case about whether the age of consent under the POCSO Act should be reduced or if special exceptions can be allowed for consensual romantic relationships between teenagers.
At present, the law treats any sexual act with a person below 18 years as a criminal offence, even if it was with mutual consent. Many have raised concerns that this can criminalise adolescent love, but the Union government firmly opposed making any changes to the law.
The matter was heard by a bench comprising Justice Vikram Nath and Justice Sandeep Mehta.
During the hearing, the counsel in the case pointed out,
“Item 117 if I am not mistaken was to be heard by a three judge bench. Our submissions are ready.”
However, Justice Vikram Nath replied,
“One of the judges was not available so the bench.”
After that, the counsel requested the court to fix a fresh date for the hearing and said,
“My lords can give us any date, the earlier the better.”
The matter is now officially listed for hearing on August 20 at 2 PM.
Earlier, The Union government expressed strong opposition against any proposals to lower the age of consent under the Protection of Children from Sexual Offences (POCSO) Act or to create exceptions for adolescent relationships.
In a submission to the Supreme Court, it argued,
“That such changes, even in the name of reform or adolescent autonomy, would undermine the legal protections designed to safeguard minors and potentially increase the risk of child abuse.”
In its written statement to a bench comprising Justices Vikram Nath and Sandeep Mehta, the government emphasized the necessity of maintaining the current threshold of 18 years, stating it must be “strictly and uniformly enforced to preserve the integrity of child protection laws and prioritize the welfare of minors.”
The Centre asserted,
“The statutory age of consent fixed at eighteen years must therefore be strictly and uniformly enforced. Any departure from this standard, even in the name of reform or adolescent autonomy, would amount to rolling back decades of progress in child protection law.”
It further warned that,
“Introducing a legislative close-in-age exception or reducing the age of consent would irrevocably dilute the statutory presumption of vulnerability that lies at the heart of child protection law.”
This firm stance from the Centre is particularly relevant given the increasing number of cases where courts are faced with consensual relationships between adolescents, which often result in the prosecution of young boys under POCSO, even when the alleged victim does not report coercion or exploitation.
The government’s response follows concerns raised by senior advocate Indira Jaising, who, acting as amicus curiae, noted that mandatory reporting of all sexual activity involving minors, including consensual encounters, was leading to the criminalization of young individuals and significantly affecting the health rights, privacy, and autonomy of adolescent girls.
Jaising and senior advocate Sidharth Luthra are providing assistance to the Supreme Court in a public interest litigation initiated by advocate Nipun Saxena in 2012.
The matter is scheduled for further discussion on Thursday.
The Centre highlighted the intentional and coherent legal framework that establishes 18 as the age of consent, stating,
“The legislative determination to fix the age of consent at eighteen years, and to treat all sexual activities with a person below that age as an offence irrespective of purported consent, is a product of a deliberate, well-considered and coherent statutory policy.”
This policy is not only evident in the POCSO Act but is also reflected across various legal frameworks, including the Indian Penal Code, the Bharatiya Nyaya Sanhita (BNS), the Indian Majority Act, the Juvenile Justice Act, and the Prohibition of Child Marriage Act, all of which recognize that individuals under 18 lack full legal agency in decisions with serious implications.
The government stated,
“It is submitted that this policy decision is an outcome of careful and ongoing legislative discussions, considering India’s cultural diversity, socio-economic conditions, and the practical challenges faced across the country,”
The submissions, prepared by additional solicitor general Aishwarya Bhati, further noted,
“It reflects a clear understanding of the vulnerability of minors, the common occurrence of coercion and manipulation in such situations, and the challenges in proving the absence of consent when minors are involved,”
The government also cautioned that lowering the age of consent would shift the focus from the actions of the accused to the perceived willingness of the child, which undermines the essence of child-centric justice and increases the likelihood of victim-blaming.
It added,
“A diluted law risks opening the floodgates to trafficking and other forms of child abuse under the garb of consent…such a shift would inevitably lead to the re-victimisation of the child by shifting the focus from the unlawful conduct of the accused to the credibility of the child’s version,”
While recognizing that some adolescent relationships may arise from “emotional curiosity or mutual attraction,” the Centre asserted that these cases should be evaluated individually by the courts and should not serve as a basis for changing the law.
The submissions emphasized,
“Such instances must be carefully scrutinised by courts on a case-by-case basis, using discretion and sensitivity to the facts. This judicial discretion, however, is distinct from legislative dilution. The moment the statute begins to generalise such exceptions, it weakens the bright-line protective standard that currently acts as a deterrent and shield for all children,”
Citing data from the Parliamentary Standing Committee on Human Resource Development in its 240th Report, the government pointed out that over 50% of sexual offences against children are committed by individuals known to the victim, including family members, caregivers, and teachers, relationships often characterized by a power imbalance that hinders children’s ability to resist or report abuse.
The Centre stated,
“In such cases, presenting ‘consent’ as a defence only victimises the child, shifts the blame onto them, and undermines the very object of POCSO to protect children from exploitation regardless of whether they were ‘willing’,”
It further explained that the strict liability imposed by POCSO is designed not as a punitive measure but as a protective one, acknowledging that minors, regardless of physical maturity, often lack the capacity to give informed consent, especially under social, familial, or economic pressures.
The government asserted,
“This principle is not confined to a single enactment but is consistently reflected across multiple enactments…This formulation is a deliberate choice, grounded in the recognition that minors lack the legal and developmental capacity to give meaningful and informed consent in matters involving sexual activity,”
Referencing international commitments, the Centre highlighted India’s obligations under the UN Convention on the Rights of the Child (UNCRC), which defines a child as anyone under 18 and mandates that states protect them from all forms of sexual exploitation and abuse.
The POCSO Act was enacted in direct response to this obligation, codifying a strict liability regime wherein all sexual acts with children under 18 are criminalised, irrespective of perceived consent.
The Centre strongly urged the Supreme Court to reject any proposals to amend or dilute the age of consent, emphasizing that such changes would encourage exploitative behavior and endanger the very children the law aims to protect.
Case Title: NIPUN SAXENA AND ANR. V UNION OF INDIA AND ORS W.P.(C) No. 565/2012
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