‘Introduce Romeo-Juliet Clause In POCSO To Exempt Genuine Teen Relationships’, SC To Centre

New Delhi: The Supreme Court on Friday took note of the rampant misuse of the Protection of Children from Sexual Offences Act, and asked the central government to curb the menace by introducing a “Romeo-Juliet” clause to exempt “genuine adolescent relationships” from its stringent provisions.

The apex court observed that the POCSO Act is one of the most solemn articulations of justice aimed at protecting the children of today and the leaders of tomorrow.

A bench comprising Justices Sanjay Karol and N Kotiswar Singh said, “Considering that repeated judicial notice has been taken of the misuse of these laws, let a copy of this judgment be circulated to the Secretary, Law, Government of India, to consider initiation of steps as may be possible to curb this menace inter alia, the introduction of a Romeo-Juliet clause exempting genuine adolescent relationships from the stronghold of this law; enacting a mechanism enabling the prosecution of those persons who, by the use of these laws, seek to settle scores, etc.”

The bench said 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 apex court also ruled that the high courts cannot order mandatory medical age determination of victims at the stage of bail in cases under the Protection of Children from Sexual Offences (POCSO) Act. The bench made these observations while setting aside an Allahabad High Court order.

Justice Karol, who authored the judgment on behalf of the bench, said the POCSO Act is one of the most solemn articulations of justice aimed at protecting the children of today and the leaders of tomorrow

The bench observed that the high court’s direction of medical age determination of victims at the stage of bail exceeded the jurisdiction under Section 439 (grant of bail) of the Code of Criminal Procedure (CrPC).

The bench ruled that the high courts cannot use their bail jurisdiction to conduct "mini-trials" or issue mandatory investigative protocols that contradict existing laws.

The bench said the determination of the victim’s age is a matter for trial, and the presumption which is accorded to the documents enumerated under the section has to be rebutted there, for that is the appropriate forum to do so, not the bail court.

The case originated from a challenge by the Uttar Pradesh government against an Allahabad High Court order granting bail to an accused in a sexual assault case, apparently involving a minor girl.

The high court, while granting bail, issued a slew of directions, including that in every case under the POCSO Act, police must conduct a medical age-determination test at the outset.

The bench, which set aside the high court judgement, however, left the part of the order granting bail as “undisturbed”.

The apex court considered the question of whether the high court, while dealing with bail pleas, could have issued directions mandating an age-determination test to be conducted in all cases involving the POCSO Act.

“It is unquestionable that the high court is a constitutional court. However, in the instant case, the error of jurisdiction by the high court was in exercise of a statutory power and not under the Constitution…,” it said.

The bench, referring to judgments, observed that it has been clearly held that the determination of the victim’s age is a matter of trial and not at the stage of bail.

The apex court said, “In cases where the victim’s courage may be tested by stigma, shame or the weight of societal scrutiny, medical evidence provides an impartial testament, grounding the pursuit of justice in the certainty of observable fact. It is, in essence, the bridge that links the personal suffering of the victim with the impartial adjudication of the law”.