The Supreme Court recently said that laws meant to protect children are increasingly being misused to punish consensual teenage relationships, and asked the Union government to consider introducing a “Romeo–Juliet” clause to protect genuine adolescent couples from harsh criminal action [The State of Uttar Pradesh vs. Anurudh & Anr.].

A bench of Justices Sanjay Karol and NK Singh made the observation while setting aside a series of directions issued by the Allahabad High Court in a bail case under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). 

The High Court had directed that in every POCSO case, police must conduct a medical test to determine the age of the victim at the very start of investigation and that bail courts could examine and even reject school or birth records if they found them doubtful.

The Supreme Court said the High Court had exceeded its jurisdiction in issuing these directions while hearing a bail plea. It held that bail courts cannot conduct “mini trials”, cannot decide disputed facts like age conclusively and cannot override the procedure fixed by the parliament for determining age.

But while doing so, the apex court also spoke at length about a larger and growing problem - the misuse of the POCSO law in cases involving consensual relationships between adolescents.

It said the POCSO Act is meant to protect children from sexual abuse and exploitation. But in many cases, it was being used as a weapon by families who oppose relationships between young people.

“The POCSO Act is one of the most solemn articulations of justice aimed at protecting the children of today and the leaders of tomorrow. Yet, when an instrument of such noble and one may even say basic good intent is misused, misapplied and used as a tool for exacting revenge, the notion of justice itself teeters on the edge of inversion,” the Court said.

The Court noted that courts across the country have repeatedly seen cases where the age of the girl is wrongly shown as below 18 to bring the boy under the harsh provisions of POCSO, even when the relationship was consensual and between teenagers who are close in age.

“Not only are instances rife where the age of the victim is misrepresented to make the incident fall under the stringent provisions of this law but also there are numerous instances where this law is used by families in opposition to relationships between young people,” it said.

The Bench said this kind of misuse creates a deep injustice. On one side are children who truly need protection but cannot access the system because of poverty, fear or stigma. On the other side are those who misuse the law to settle personal scores.

“Misuse of the POCSO Act highlights a grim societal chasm - on the one end children are silenced by fear and their families are constrained by poverty or stigma, meaning thereby that justice remains distant and uncertain, and on the other hand, those equipped with privilege, literacy, social and monetary capital are able to manipulate the law to their advantage,” the bench noted.

Because of this, the Court directed that a copy of its judgment be sent to the Law Secretary of the Union government. It said the Centre should consider steps to curb this misuse.

One of the ideas suggested by the Court was the introduction of a “Romeo–Juliet clause”, which would protect genuine adolescent relationships from being dragged into the criminal system.

The Court also said that lawyers have a big responsibility in such cases. They should not blindly file cases when it is clear that the law is being used for revenge or pressure. The Bar must act as a filter so that laws meant to protect do not become tools of harm, the Bench underscored.

“The first line of defence lies with the Bar i.e., the body that translates grievance into action and is the gatekeeper of justice at the point of entry. When it comes to matters such as these, the responsibility of the advocate is profound - to examine the allegations with detachment and necessary discretion and to counsel restraint when grievance masks vengeance and to refuse participation in litigation when it can be seen that an ulterior motive is sought to be agitated under the guise of seeking protection of the law," the judgement noted.

The case before the Court, however, was not directly about a teenage relationship. It arose from a bail order passed by the Allahabad High Court in a POCSO case.

In that case, the High Court had granted bail to an accused and, while doing so, had laid down wide directions.

It said that in every POCSO case, the police must get a medical test done at the start of the investigation to determine the age of the victim. It also said that bail courts could examine and question documents like school certificates if the age of the victim was disputed.

The Uttar Pradesh government challenged this before the Supreme Court.

The Supreme Court said that though the High Court is a constitutional court, its powers are limited when hearing a bail matter under the Criminal Procedure Code.

In bail jurisdiction, a court can only decide whether an accused should be released or not. It cannot give general directions to the police or change how investigations across the State should be done.

The Bench said that mixing constitutional powers with statutory bail powers in this way was legally incorrect.

On the issue of age determination, the Court explained the law in simple terms. Under the Juvenile Justice Act, there is a clear order of preference for deciding age. First, courts must look at documents like school certificates or birth certificates. Only if such documents are not available can medical tests like ossification or radiological tests be used.

It added that medical tests cannot be made compulsory in every case. They are a last option, not the first.

Therefore, the directions given by the High Court were set aside. The bail granted in that particular case was not disturbed because it was based on other factors as well.

Even while correcting the High Court, the Supreme Court said it understood the concern behind those directions. Courts are seeing many cases where POCSO is misused, especially in situations involving young couples.

It said misuse of laws like POCSO and Section 498A of the Indian Penal Code shows a moral and social problem, not just a legal one.

“This chasm between access and abuse is also mirrored in the misuse of Section 498-A IPC and the Dowry Prohibition Act, 1961," the apex court noted.

It said no amount of court orders can fix this unless society, lawyers and institutions act with honesty and responsibility.

The petitioner was represented by advocate Ruchira Goel.

The State was represented by advocates Saurabh Singh, Archana and Vedant Tiwari.

Advocate DS Parmar acted as the amicus curiae.

[Read Judgment]