Reconstructing Consent Under The POCSO Act: Early Puberty, Adolescent Agency, And Article 21
- IJLLR Journal
- 1 hour ago
- 2 min read
Dr. Neha Damani, Postdoctoral Fellow, ICSSRVisiting Faculty, University College of Law, Mohanlal Sukhadia University, Udaipur
ABSTRACT
The Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted to provide strong legal protection to children against sexual abuse and exploitation. By fixing eighteen years as the age of consent and adopting a strict liability framework, the Act treats all sexual activity involving persons below this age as non-consensual in law. While this approach serves an important protective purpose, its application over the years has revealed serious doctrinal concerns. A significant number of cases registered under POCSO involve consensual relationships between adolescents close in age, often arising due to parental opposition rather than allegations of coercion or abuse.
This paper argues that the rigid age-based construction of consent under POCSO creates a constitutional tension with Article 21 of the Constitution of India. Constitutional jurisprudence has consistently recognised dignity, bodily integrity, privacy, and decisional autonomy as essential components of personal liberty. At the same time, biological and developmental research shows that puberty and cognitive capacity emerge earlier and unevenly, challenging the assumption that all persons below eighteen lack agency in intimate decision-making. When criminal law ignores these realities, it risks becoming overbroad and disproportionate.
Through a doctrinal analysis of statutory provisions, constitutional case law, and judicial practice, the paper identifies an interpretive gap between child protection and adolescent agency. It shows how courts have repeatedly expressed discomfort in prosecuting consensual adolescent relationships under POCSO but remain constrained by the statute’s rigid design. Drawing on comparative jurisprudence and established constitutional principles, the paper proposes a limited doctrinal reconstruction of consent under POCSO. This reconstruction aims to distinguish exploitative conduct from consensual peer relationships without diluting child protection. The paper concludes that such a constitutionally harmonised approach is necessary to prevent unjust criminalisation while remaining faithful to the protective purpose of the Act.
Keywords: POCSO Act; Child Rights Jurisprudence; Age of Consent; Article 21; Constitutional Morality
