Consider ‘Romeo-Juliet clause’ to exempt genuine adolescent relationships from POCSO Act: SC to Centre

“Considering the fact 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 seeks to settle scores etc,” said a bench of Justices Sanjay Karol and N K Singh.

The January 9, 2026 ruling came on an appeal by the Uttar Pradesh government challenging the May 29, 2024 direction of the Allahabad High Court asking police to ensure that medical report determining the age of the victim is drawn up at the commencement of investigations of all POCSO Act offences and the same is produced before the court hearing the bail application.

The HC order came on a bail plea in a POCSO case wherein it directed constitution of a medical board to determine the age of the victim. It finally accepted the medically determined age of the prosecutrix as above 18 years and consequently, allowed bail to the accused.

The HC also said, “The police authorities/investigation officers shall ensure… that the medical report determining the age of the victim is drawn up by the competent medical authority at the commencement of the investigations of POCSO Act offences in accordance with the provisions of Section 164-A CrPC, read with Section 27 of the POCSO Act. The medical report… shall be produced by the police authorities/investigation officers before the court hearing the bail application. The learned courts while hearing bail applications shall make due enquiries about the compliance of these directions… during the bail proceedings.”

While it did not disturb the grant of bail, the SC set aside the direction for mandatory medical tests to determine age in all POCSO cases.

Writing for the bench, Justice Karol said, “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. The powers arising from the Constitution and those flowing from a statute are distinct and separate.”

“A constitutional power is one which emanates directly from the text and spirit of the Constitution… and inheres in those institutions or functionaries whose existence and competence are defined by it. Such powers are self-sustaining; they are not contingent upon any Act of the Legislature, nor can they be abridged or extinguished except through a formal amendment under Article 368…These powers represent the apex of the legal hierarchy, deriving their legitimacy not from the will of the people as expressed by Parliament, but from the sovereignty of the Constitution itself.”

“In contrast”, the SC said, “A statutory power is derivative and conditional, drawing its vitality from a law duly enacted by Parliament or a State Legislature. Such power exists only within the four corners of the enabling statute and is circumscribed by its language, purpose and legislative intent… The exercise of these powers must conform strictly to the parameters laid down by the statute; any transgression beyond its express or implied authority is rendered ultra vires and, therefore, void in the eyes of law.”

The top court said “the constitutional power cannot overshadow the statutory power, enlarging its scope beyond what has been envisaged by the statute. In other words, while both powers rest with the High Court, one power cannot usurp the ambit of another, unless otherwise permitted by law.”

The bench held that “determination of age of the victim is a matter of trial and not at the stage of bail. If the age is under question, the bail court may examine the documents produced to establish age, but it will not enter into the question of those documents being correct or not. The mandate of Section 94 Juvenile Justice Act (dealing with presumption and determination of age) is clear. The documents provided therein are to be utilised for determination of the age of the victim, and only in the absence thereof, will medical evidence be resorted to”.

It added: “The necessary sequitur from the above exposition is that a medical determination of age of a victim cannot be resorted to as a matter of course, much less mandated. It can only be employed in a given circumstance when the other stipulations of Section 94 JJ Act are not/cannot be met.”

The SC said “the importance of medical examination in the harrowing crimes of sexual assault cannot be overstated, it is not merely a record of injury or a catalogue of biological traces; it is the voice of the body, speaking when words falter and memory trembles. 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. At the same time, its purpose, which is to gather essential evidence in a scientifically sound manner, with due regard to the principles of human dignity on one hand and evidence on the other, cannot be reduced to a common, matter of course step – especially when a procedure with a legislative imprimatur has been laid down.”

The SC, however, noted that the HC order was well-intentioned given the misuse of the POCSO Act.

“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. Courts have in many cases sounded alarm regarding this situation. Misuse of the POCSO Act highlights a grim societal chasm — on the one hand 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 impugned judgment is one amongst many where courts have spoken out. 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.”

The court added that “this chasm between access and abuse is also mirrored in the misuse of Section 498-A IPC and the Dowry Prohibition Act, 1961”.

It said: “The misuse of these laws is a mirror to the opportunistic and self-centered view that pervades the application of law. It is only through discipline, integrity and courage that these problems can be remedied and rooted out. Any legislative amendment or judicial direction will remain lacklustre without this deeper change.”