Introduction
Let’s start with a round of applause. Genuinely. When India enacted the Protection of Children from Sexual Offences Act in 2012, Pocso, for those of us who cannot say the full name without losing the will to live it was a genuinely good moment. A dedicated statute. Defined offences. Child-sensitive procedures. Presumption of guilt once facts are established (Section 29, yes, the law actually flipped the script for once). Special Courts. Time-bound trials. Parliament basically showed up to the exam having actually studied. Which, as anyone who follows Indian legislation will tell you, does not always happen.
And then like a student who aces the theory paper and then falls asleep during practicals the system decided that enacting the law was quite enough effort for one decade. Implementation? That’s someone else’s problem. Preferably someone with no budget, no staff, and a pending caseload the size of a small municipality.
Pocso turned 12 years old recently. Its backlog of pending cases? Over 2.4 lakh as of the latest National Crime Records Bureau data. The law is barely a teenager and it already has more unresolved issues than most adults. Relatable, perhaps. Acceptable, absolutely not.
The Kathua Case
To understand how badly the system can fail, meet an eight year old girl. A Bakerwal nomadic girl from Kathua, Jammu. In January 2018, she was abducted from a forest, taken to a temple, drugged, gang-raped for days, and murdered. Pocso existed. The Indian Penal Code existed. Every legal tool needed to pursue justice existed.
What also existed, unfortunately, was a group of lawyers who showed up to block the filing of the chargesheet. Bar Association members. Men who had sworn an oath to uphold the law, forming a human chain to prevent it from being applied. Politicians attended rallies in support of the accused. The victim’s family, which is a poor, nomadic, minority, received threats to leave the area.
If you are waiting for the punchline, there isn’t one. This is what Pocso looks like when community power and State indifference align against a child nobody considers worth protecting.
The trial eventually moved to Pathankot, Punjab. Convictions came in 2019. Life imprisonment for the main accused. But here is the thing about justice delayed: She was eight. She did not get to see the verdict. The law won, eventually, technically and the child lost, completely, permanently.
The Unnao Survivor
In this case a complaint was filed in 2017 against a sitting MLA, Kuldeep Singh Sengar. Nothing happened. Filed again. Nothing. Her father was arrested on arms charges shortly after and died in judicial custody. Still, nothing.
In 2018, a teenage girl walked to the Chief Minister’s residence in Lucknow, poured kerosene on herself, and set herself on fire. That got an FIR registered.
Let us sit with that for a moment. A minor, alleging rape by a powerful legislator, had to perform an act of self-immolation before the police considered the matter worth recording.
Relevant Provisions Under Pocso
- Section 19: Mandates reporting of offences under Pocso.
- Section 21: Makes non-reporting a criminal offence.
- Section 5(c): Aggravated penetrative sexual assault by a person in a position of trust or authority.
- Section 6: Punishment for aggravated penetrative sexual assault.
Splendid sections, truly. Ten out of ten on paper. Zero out of ten in Unnao in 2017.
In 2019, a Fast Track Court in Delhi convicted Sengar under Section 5(c) and Section 6 of Pocso aggravated penetrative sexual assault by a person in a position of trust or authority and sentenced him to life imprisonment. The law, eventually, worked. The system that was supposed to make the law work, did not. There is a difference between those two things, and India keeps pretending there isn’t.
The Romeo-Juliet Problem: Or, How Pocso Became a Parental Remote Control
Now, here is where things get complicated and also, frankly, a little absurd. Pocso sets the age of consent at 18. Hard stop. Any sexual activity involving a person below 18 is an offence. No exceptions. No “but they’re the same age.” No “but they were in the same Class XII section and have been dating for a year.” No nuance. No mercy. The law does not care. The law has the emotional range of a government circular.
The result? Hundreds of cases every year where a 17-year-old girl’s parents, unhappy about her 18-year-old boyfriend often because of his caste, religion, or the general crime of being from a different community file a Pocso complaint.
- The boy gets arrested.
- The girl gets “rescued” into a government shelter she did not ask to enter and cannot leave.
- The boy sits in undertrial detention for months, sometimes years.
- Parents congratulate themselves on saving their daughter from the terrible menace of a boy she chose herself.
The Madras High Court, bless Justice N. Anand Venkatesh, had something to say about this in Vijayalakshmi v. State (2021). He quashed the FIR, observed that Pocso was being routinely weaponised by parents to break up relationships they found “socially unacceptable,” and noted that this misuse was creating a chilling effect on young people’s autonomy.
The Allahabad High Court in Payal v. State of Uttar Pradesh (2021) said something similar about inter-faith relationships being targeted under the convenient cover of child protection law.
Which brings us to the Romeo-Juliet clause, a legal concept so named because even the judiciary, apparently, sometimes cannot resist a Shakespeare reference.
Enter The Romeo-Juliet Clause: Stage Left, Looking Slightly Embarrassed
A Romeo-Juliet clause, the term comes from American state law, Florida pioneered it formally as a close-in-age exemption. The idea is elegantly simple: the criminal law exists to protect children from exploitation by adults who know better, have more power, and use it badly. It does not exist to jail a 19-year-old for being in a consensual relationship with a 17-year-old who would very much like the State to mind its own business.
International Examples
Canada has it. Section 150.1(2.1) of the Criminal Code exempts consensual activity between a 14 or 15-year-old and a partner less than five years older, provided there is no exploitation involved. The United Kingdom’s prosecution guidelines for the Sexual Offences Act 2003 explicitly counsel against charging in cases of mutual peer relationships. Several American states have graduated age-of-consent provisions.
Indian Legal Position
India? India has Section 4 of POCSO, which does not ask questions, and Section 29, which presumes guilt. Both are excellent tools against genuine predators. Neither was designed with two teenagers from the same school in mind. But here we are.
Systemic Impact Of Misuse
The tragedy is not just that innocent young men are being jailed, though they are. It is that every such case consumes police resources, prosecutor time, court bandwidth, and judicial attention that could have been spent on an actual predator, somewhere, waiting for his POCSO trial to conclude in 2031.
Supreme Court Perspective
The Supreme Court in Independent Thought v. Union of India (2017) took care to note that the law must be consistent in its treatment of the girl’s autonomy across all contexts. A 16-year-old is not an infant and is not a fully formed adult, she is a person in process, and a law that treats her consent as always irrelevant is not protecting her. It is patronising her. There is a distinction. Adults in power tend to find it inconvenient.
What Actually Needs To Change: Three Things, Genuinely, Urgently
- Parliament needs to introduce a close-in-age exemption. A three-to-five year gap between adolescents, with an absence of coercion or exploitation as the test, would save hundreds of young people from unnecessary prosecution while keeping POCSO’s full force squarely aimed at actual abusers. This is not controversial in most of the world. India should stop treating it as if it were.
- Child advocacy centres must be funded and scaled. Child advocacy centres, where a child tells their story once, to a trained multi-disciplinary team, instead of repeating it to a police officer, then a magistrate, then a doctor, then a judge over the course of three years must be funded and scaled. The current process does not gather evidence; it dismantles the witness.
- Compensation under Section 33(8) of POCSO must be automatic and real. A child who has been through this system investigated, examined, cross-examined, delayed and whose abuser is then acquitted on a technicality, walks out of court with nothing. No money. No support. No explanation. Just the door.
Conclusion: The Law Needs To Grow Up
Here is what POCSO got right: it showed up. It named the offences. It created the framework. It made mandatory reporting a legal obligation. It tried, legislatively speaking, to build a world where a child who had been harmed could say so and be believed. Here is what the system did with that: filed it, underfunded it, staffed it with unprepared people, pointed it occasionally at the wrong targets, and congratulated itself on having passed the law.
The Kathua case victim deserved a system that moved immediately. The Unnao survivor deserved a system that moved at all. The 17-year-old in a shelter she did not ask to enter deserves a system that understands the difference between protecting her and controlling her. India wrote a good law. Now it needs to decide whether it also intends to deliver one. That, unfortunately, requires more than a pen.
