New Delhi: Senior Advocate Indira Jaising stood before the Supreme Court of India in the last week on July and made a request that reignited an old and uncomfortable question: should consensual sex between teenagers still be considered a crime? At the center of this storm is one number: 18. That is the age set by Indian law for legally consenting to sex.

Jaising argued this threshold may be punishing teenagers instead of protecting them. In her written submission, she urged the court to reconsider how the law treats consensual relationships between adolescents aged 16 to 18. Such relationships, she said, do not fit the definitions of exploitation or abuse.

The government disagreed. It fears that lowering the bar could leave minors, those legally not adult, below 18, vulnerable to coercion, manipulation or worse. It argued making room for exceptions could lead to loopholes that might be exploited by traffickers or abusers.

But the law, especially the 2012 Protection of Children from Sexual Offences (POCSO) Act, draws no lines between love and violation when it comes to minors. It sees all sexual activity under the age of 18 as criminal, even when both parties consent.

This hard line has come under scrutiny from activists, judges and rights groups who believe the law is outdated or at least too rigid. In some cases, they say, parents have used the law to intervene in relationships they disapprove of, especially when caste, religion or class are involved.

Many experts say the law has become a tool of control more than protection.

The Global Picture and India’s Long Trail

Consent laws around the world are not the same. In countries like the United Kingdom and Canada, the age is 16. In the United States, it varies state to state. But in India, it is fixed, one rule for all.

Back in 1860, when India first codified its criminal laws, the age was 10. In 1940, it was raised to 16. Then came POCSO, which made 18 the new standard. That was over a decade ago. Since then, the conversation has shifted, slowly, painfully but noticeably.

The Courts Speak, Then Pause

In 2022, the Karnataka High Court stepped in. It suggested that the Law Commission revisit the consent age under POCSO. The court pointed to several cases where teenage couples, a girl just over 16 and a boy barely out of adolescence, had been pulled into criminal trials under the law, even when there was no allegation of force.

The Law Commission reviewed the matter but did not recommend lowering the age. Instead, it proposed something else: allowing courts to use “judicial discretion” in cases involving teenagers. This means judges could consider the nature of the relationship, the age gap and whether coercion was involved before passing judgment.

Even without formal legislation, some courts across India have started doing that. They have granted bail, overturned convictions or dismissed charges in cases where evidence showed mutual consent and emotional connection between teenagers.

But not every bench agrees. In April, the Madras High Court overturned an acquittal in a case where a 17-year-old girl left home to be with a 23-year-old man. Her family had arranged her marriage elsewhere. The court sentenced the man to 10 years in prison under POCSO.

Process as Punishment

For Advocate Jaising, this is part of the problem. She said simply giving judges the discretion is not enough. Trials can be long, traumatic and carry the weight of stigma. “For many people, the process itself becomes the punishment,” she stated.

A report from the India Child Protection Fund shows just how overloaded the system is. As of January 2023, nearly 250,000 POCSO cases were pending in special courts created to handle them.

Jaising argued for consistency and for a system that does not criminalise teenagers for being teenagers. “Leaving everything to judicial discretion can result in unequal outcomes,” she warned.

A Society in Conflict With Itself

This is where India finds itself today caught between the need to protect and the need to understand, the fear of abuse and the reality of young love and between a law that seeks clarity and a society that lives in shades of grey.

Lawyer and child rights advocate Bhuvan Ribhu said exceptions cannot be unconditional. He worries about misuse in cases of trafficking or child marriage. He supports discretion, but also faster trials, better rehabilitation of survivors and greater awareness.

Not everyone is cautious. Ananashi Ganguly, co-founder of HAQ: Centre for Child Rights, stands with Jaising. “We cannot avoid reform only because we are afraid of misuse,” she said.

According to her, society is changing. The law needs to change with it.

As this debate continues, India faces another question: what does protection mean when it becomes punishment? Where does responsibility lie in a law written for children or in a society still learning to talk to them about sex, safety and consent?