1

AMCC-TC-18

ST. JOSEPH’S COLLEGE OF LAW, BANGALORE, ARCHE MOOT COURT

COMPETITION, 2024

BEFORE THE HONOURABLE SUPREME COURT OF JAMBUDWEPA

Writ Petition No._______________/ 2024

(Filed under Article 32 of the Constitution of Jambudweepa, 1950)

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANTS

COUNSEL APPEARING ON BEHALF OF THE APPELLANTS

IN THE MATTER OF

LOVE IS LOVE ___ PETITIONER

Vs.

UNION OF INDIA __ RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS

INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

ISSUES

SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

PRAYER
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LIST OF ABBREVIATIONS

ALL INDIA REPORTER

AIR

A. ARTICLE

Cr.P.C CRIMINAL PROCEDURE CODE

C.A. CONSTITUTIONAL AMENDMENT

CA CONVENING AUTHORITY

DAVA DOMESTIC ABUSE VICTIM ADVOCATE

IO INVESTIGATION OFFICER

POD PROTECT OUR DEFENDERS

COJ CONSTITUTION OF JAMBUDWEEPA

L.A. LEGISLATIVE ASSEMBLY

ILR INDIAN LAW REPORTS

NCT NATIONAL CAPITAL DELHI

NJP NON JUDICIAL PUNISHMENT

OIC OFFICER - IN CHARGE

U.T UNION TERRITORY

CRC THE CONVENTIONS ON THE RIGHT OF THE CHILD

CLC CRIMINAL LAW CASES

CPC CIVIL PROCEDURE CODE

SAPR SEXUAL ASSAULT PREVENTION AND RESPONSE

SC SUPREME COURT

JPC JAMBUDWEEPA PENAL CODE

IPC INDIAN PENAL CODE

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INDEX OF AUTHORITIES

CASES :

1. KESAVANANDA BHARATI v. STATE OF KERALA (1973)

2. MUKESH & ANR v. STATE FOR NCT OF DELHI & ORS

3. SRI SILVERSTAR KHONGLAH & ANRS VERSUS STATE OF

MEGHALAYA ANRS.

4. SANJAY SURI VS DELHI ADMINISTRATION.

5. VIJAYLAKSHMI VERSUS STATE REP BY THE INSPECTOR OF POLICE,

ALL WOMEN POLICE STATION, ERODE.

6. PEOPLE’S UNION FOR DEMOCRATIC RIGHTS Vs. UNION OF INDIA :

AIR 1982 S.C. 1473.

7. JOSEPH SHINE VS. UNION OF INDIA.

8. MANEKA GANDHI Vs. UNION OF INDIA.

9. KHARAK SINGH Vs. STATE OF U.P. AND ORS. [1964]

10. GOPALAN VERSUS STATE OF MADRAS.\

11. GHULAM SARWAR VERSUS. UNION OF INDIA ; AIR 1335 1967.

BOOKS :
1. The constitution of India.
2. The professional’s protection of children from sexual offences Act, 2012
[POCSO] Bare Act 2021
3. Amar law publication’s offence against child & juvenile offences by Dr. Sheetal
Kanwal.
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4. Commentary on The Juvenile Justice Act, 2nd edition by Suman Nalwa & Hari
Dev kohli.
5. Juvenile justice(care and protection of children) Act, 2015 with model rules, 2016
and national policy for children.

CITATIONS :

https://www.scconline.com/blog/post/2023/04/05/reassessing-age-under-pocso-a-step-
forward/

https://www.livelaw.in/top-stories/cji-dy-chandrachud-urges-parliament-to-consider-
concerns-about-age-of-consent-under-pocso-act-216336

https://www.scconline.com/blog/post/2023/03/12/age-of-consent-under-the-pocso-act/

https://www.scconline.com/blog/post/2023/09/30/law-commission-recommends-to-
amend-pocso-act-legal-
news/#:~:text=283%20on%20the%20subject%20%E2%80%9CAge,between%2016%2
0to%2018%20years.

https://www.hindustantimes.com/cities/others/mutual-acts-of-love-between-minor-
couple-not-sexual-assault-under-pocso-says-hc-101667359793844.html

https://timesofindia.indiatimes.com/city/delhi/consensual-sex-with-minor-not-a-crime-
delhi-court-says/articleshow/22056783.cms

https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child

https://cara.wcd.gov.in/pdf/jj%20act%202015.pdf

https://www.unicef.org/armenia/en/stories/four-principles-convention-rights-child

https://www.scconline.com/

https://theleaflet.in/age-of-consent-marriage-and-the-pocso-
act/#:~:text=Age%20of%20Consent%20Act%2C%201891,parental%20control%20ove
r%20adolescent%20girls.

https://theleaflet.in/the-need-for-revising-the-age-of-consent-under-the-pocso-act/

https://wcd.nic.in/sites/default/files/POCSO%20Act%2C%202012.pdf

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8009025/
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https://economictimes.indiatimes.com/news/india/influential-people-used-to-get-all-
kinds-of-favours-in-prison-claims-ex-law-officer-of-tihar-
jail/articleshow/95731301.cms?from=mdr

https://www.livelaw.in/top-stories/why-has-the-law-commission-advised-against-
reducing-age-of-sexual-consent-to-16-years-
239012#:~:text=The%20Law%20Commission%20of%20India,years%20under%20the
%20POCSO%20Act.
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STATEMENT OF JURISDICTION

THE PETITIONER HAVE APPROACHED THE HON’BLE SUPREME COURT OF

JAMBUDWEEPA UNDER ARTICLE. 32 OF THE CONSTITUTION OF
JAMBUDWEEPA, 1950.
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STATEMENTS OF FACTS

The country of Jambudweepa, one of the world's largest and most populated country,
Jambudweepa is similar to India in its constitution and physical traits. It is also one of the
largest democratic country in the world where the diversity runs through multiple races,
religions, castes, tribes, languages, social customs, cultural and sub-cultural beliefs, and
ideologies. It is also a secular country guaranteeing the freedom of following and practising
all religious faiths under its constitution.

In the town of Jambudweepa, two 16-year-olds, Arun and Adhiti, found solace in their shared
interests and developed a consensual romantic relationship. On 24th November, 2023 as
alleged by the parents of the Adhiti they had gone to outstation for some purpose and Adhiti
was left alone at her home. Taking the advantage of parents not at home she called Arun and
they engaged in a consensual sexual interaction with each other.

However, their personal choices soon became known to her family. Adhiti's parents, driven
by cultural values and genuine concern for her well-being, took legal action against Arun
under Sec 4 of the POCSO Act. The case revolved around the clash between the statutory age
of consent for sexual activity in Jambudweepa, set at 18 years, and the provisions of the
Protection of Children from Sexual Offences (POCSO) Act.

The Juvenile Justice Care and Protection Act 2015 is the legislation that is used to address
issues regarding the punishment of all persons below the age of 18 for all offences. The only
exception in the rule is with regards to criminal charges associated with heinous offences
wherein the punishment is imprisonment of seven years or more.

An NGO named Love is Love defended the legal charges which were made against Arun.
They presented an argument that the couple's relationship was consensual and rooted in
mutual affection. They also put forth a ground that Arun entered into sexual relation with
Adhiti only after confirming her assent to the act at the given circumstances, he neither forced
himself upon her or enticed her by any means to do so. They argued that the application of
the POCSO Act, meant to protect children from exploitation, might not be appropriate in this
scenario. The NGO emphasised the need for stringent measures to protect adolescents from
potential harm.

The NGO therefore took the initiative and filed a writ petition under article 32 of the
constitution of Jambudweepa alleging that such regressive legislations are violative of
personal liberty specified under article 21 and are unreasonable under article 14.
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STATEMENT OF ISSUES

1. WHETHER THE PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE

CONSTITUTION OF JAMBUDWEEPA ?

2. WHETHER THE APPLICATION OF THE POCSO ACT TO CONSENSUAL ACTS

BETWEEN JUVENILES VIOLATES CONSTITUTIONAL PRINCIPLES,
SPECIFICALLY REGARDING THE RIGHTS TO PERSONAL AUTONOMY AND
PRIVACY ?

3. TO WHAT EXTENT SHOULD CULTURAL VALUES AND GENUINE

PARENTAL CONCERN FOR A CHILD’S WELL-BEING INFLUENCE LEGAL ACTION
AND THE INTERPRETATION OF STATUTES CONCERNING CONSENSUAL
RELATIONSHIPS BETWEEN ADOLESCENTS WITH REFERENCE TO THE
JUVENILE JUSTICE (CARE AND PROTECTION) ACT 2015 ?
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SUMMARY OF ARGUMENTS

1. WHETHER THE PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF

THE CONSTITUTION OF JAMBUDWEEPA ?

It is submitted that the petition is maintainable. The court derives its power to issue
writs from article 32 of the constitution. Maintainability can be established under
three grounds: 1.1.That the NGO, ‘Love is Love’ has locus standi to file the present
petition; 1.2. Equal protection of the law under article 14 may stand violated; 1.3.That
the right to personal liberty specified under Article 21 may stand violated.

2. WHETHER THE APPLICATION OF THE POCSO ACT TO CONSENSUAL

ACTS BETWEEN JUVENILES VIOLATES CONSTITUTIONAL PRINCIPLES,
SPECIFICALLY REGARDING THE RIGHTS TO PERSONAL AUTONOMY AND
PRIVACY ?
1. Non-discrimination;
2. right to life, survival, and development;
3. doing what is in the child’s best interest;
4. meaningfully engaging and respecting children's views.
mentioned under the United Nations Convention on the rights of the child.
1. THAT SUCH APPLICATION OF THE POCSO ACT DISCRIMINATES
THE MALE CHILD SOLELY BASED ON HIS GENDER.
2. THE PERILOUS REPERCUSSIONS OF GENDER DISCRIMINATION -
PRETRIAL INCARCERATION ON THE MALE CHILD.
3. RECOGNITION OF FEMALE CHILD’S AUTONOMY AND WILL

3. TO WHAT EXTENT SHOULD CULTURAL VALUES AND GENUINE

PARENTAL CONCERN FOR A CHILD’S WELL-BEING INFLUENCE LEGAL
ACTION AND THE INTERPRETATION OF STATUTES CONCERNING
CONSENSUAL RELATIONSHIPS BETWEEN ADOLESCENTS WITH
REFERENCE TO THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT
2015 ?

1. The cultural practices practised in the society need not be mandated by the
law.
The practices followed in the society need not be followed, such as the sati,
child marriage but the society should let the age of consent from the 18 years
to 16 years , as there is as huge burden of case on POCSO, misusing this act.

2. Alining with International Standards and parental controls.

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The Indian laws have to be kept at par with the international standards, as the
lowest age of consent is 11 years, but in the evolving digital era of 21st
century, it is an abstruct issue of parents over controlling.

3. The Hon’ble Supreme Court to Reassessing the Age of Consent under the protection
of children from sexual offences Act, 2012.
The supreme court to reassess the age of consent, as the Justice D.Y
Chandrachud has even suggested the parliament to reconsider the age of
consent.
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ARGUMENTS ADVANCED

1. WHETHER THE PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE

CONSTITUTION OF JAMBUDWEEPA ?
1. The petitioner submits that the present petition is maintainable in the Honorable Supreme
Court of Jambudweepa. The Supreme Court derives its writ jurisdiction from article 32 of the
constitution of Jambudweepa,which enables the court with a wide range of powers. Under
article 32 of the Constitution,one can move the Supreme Court by appropriate proceedings
for the enforcement of rights and the court has the power to issue orders or directions or
writs. It is submitted that the petition is maintainable primarily on three grounds: 1.1.That the
NGO, ‘Love is Love’ has locus standi to file the present petition; 1.2. Equal protection of the
law under article 14 may stand violated; 1.3. That the right to personal liberty specified under
Article 21 may stand violated.

1.1.That the NGO, ‘Love is Love’ has locus standi to file the present petition
2. In public law, the rule that only the aggrieved person is entitled to seek judicial redress has
been liberalised to include any “public spirited individual” or “association”. There has been a
liberalisation of the Rule of Locus Standi permitting Non Governmental Organizations to
espouse the public cause. The Supreme Court in People’s Union for Democratic Rights v.
Union of India : AIR 1982 S.C.1473, laid down, “any member of the public or social action
group acting bonafide, can invoke the jurisdiction of the High Courts and the Supreme Court
seeking redressal against violation of legal or constitutional rights of persons who owing to
social or economic or other disability cannot approach the court”. The judgement also
declared the social action litigation to be a potent weapon for the enforcement of public
duties where executive inaction or misdeed resulted in public injury. This judgement opened
a way for the human right NGOs to become active in the espousal of the cause of the people
in general or specifically affected, to protect their human rights.Many human right NGOs
have come up to the Supreme Court for enforcement of invaded human rights and obtained
orders to redress the grievance of the public.

3. The Supreme Court is the protector and guarantor of the fundamental rights of the people
of the country. Therefore, the liberalisation of the rule of locus standi came out of the
considerations that the courts can reach all aggrieved sections of society who are denied their
rights and entitlements. This can be ensured when groups of people like NGOs encourage the
raising of matters of common concern arising from dishonest or inefficient governance or
regressive legislations that violate the rights of the citizens. The epistolary jurisprudence of
treating letters to be writ petitions, has rendered the use of the NGOs more meaningful. The
Supreme Court is also alive in response to the cry of the NGOs to protect human rights.

4. In the present case, the NGO, ‘Love is Love’ has the locus standi to move the court on
behalf of the minor charged under section 4 of the POCSO for engaging in consensual sexual
inter course with another minor. It is imperative to emphasise on the fact that the sexual
intercourse took place with the consent of the female child and there was no involvement of
any sort of coercion in the act. Hence, the NGO has the locus standi to move the court owing
to the violation of rights guaranteed under Article 14 and Article 21.
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5.Furthermore, a writ petition is maintainable even before the violation of a constitutional or

otherwise legal right has been committed. Once a law or order has been passed which
potentially infringes a legal right, a writ petition may be filed. The increasing age of consent
has led to criminalization of consensual sexual activity among adolescents. This has violated
the personal liberty of adolescents to engage in sexual activity and take decisions regarding
their sexual activity. The legislation may violate the personal autonomy of adolescents.
Hence in lieu of the increasing tendency to criminalize consensual sexual acts, the NGO
submits the petition to reconsider the impugned age of consent.
Hence it is humbly submitted that the NGO has the locus standi.

1.2.Equal protection of the law under article 14 may stand violated

Article 14 of the Constitution states that the state shall not deny to any person equality before
the law or the equal protection of the laws within the territory of Jambudweepa. The Supreme
Court in Joseph Shine vs. Union of India struck down Section 497 of the IPC on the grounds
that it violated Articles 14, 15 and 21 of the Constitution. The five Judge Bench unanimously,
in four concurring judgments, held that the law was archaic, arbitrary and paternalistic, and
infringed upon a woman’s autonomy, dignity, and privacy. Section 198(2) of the CrPC which
allowed only a husband to bring a prosecution under Section 497 of the IPC was also struck
down as unconstitutional. The petitioners deem it unconstitutional to criminalize the male
child in the case of a consensual sexual relationship. To criminalize the male child, when the
act involved equal willing participation from the female child, and there was no ill-intention
on the side of the male child, is unconstitutional. The act of pressing criminal charges against
the male child when there is an absence of mens rea goes against the very essence of criminal
law and the constitutional fabric of the nation at large. Hence the age of consent may be an
unlawful legislation.

1.3. That the right to personal liberty specified under Article 21 may stand violated
The honourable Supreme Court in Maneka Gandhi vs. UOI held that a triumvirate exists
between Article 14, Article 19 and Article 21. All these articles have to be read together.
Article 21 states that “No person shall be deprived of his life or personal liberty except
according to a procedure established by law.” Thus, article 21 secures two rights: 1) Right to
life, and 2) Right to personal liberty. The fundamental right provided by Article 21 is one of
the most important rights that the Constitution guarantees.The Supreme Court has described
this right as the ‘heart of fundamental rights’. The remedy for the aggrieved person in case of
violation would be under Article 32.The right to life is not just about the right to survive. It
also entails being able to live a complete life of dignity and meaning. In recent times, gauging
the importance of the rights guaranteed under Article 21, judicial intervention has ensured
that the scope of Article 21 is not narrow and restricted. In Kharak Singh v. State of U.P. and
Ors. (1964) it was held that the right to personal liberty constitutes not only the right to be
free from restrictions placed on one’s movements but also to be free from encroachments on
one’s private life. The present petition alleges that the age of consent violates right to liberty
by regulation of consensual sexual relationships and holds that the age of consent under the
POCSO Act may be ultra vires of the Constitution, especially personal liberty and autonomy.

Hence it is humbly submitted that the petition is maintainable .

2. WHETHER THE APPLICATION OF THE POCSO ACT TO CONSENSUAL

ACTS BETWEEN ‘JUVENILES VIOLATES CONSTITUTIONAL PRINCIPLES,
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SPECIFICALLY REGARDING THE RIGHTS TO PERSONAL AUTONOMY AND

PRIVACY?

Ensuring that laws prioritise the welfare of children is imperative, as it aligns with the
fundamental principles of

1. non-discrimination;
2. right to life, survival, and development;
3. doing what is in the child’s best interest;
4. meaningfully engaging and respecting children's views.
mentioned under the United Nations Convention on the rights of the child.

1. THAT SUCH APPLICATION OF THE POCSO ACT DISCRIMINATES THE

MALE CHILD SOLELY BASED ON HIS GENDER

With the enactment of the Protection of Children from Sexual Offences Act, 2012 (the
POCSO Act), the legislature found it fit to raise the “statutory age of rape” or “the age of
consent to sexual activity” from sixteen years to eighteen years and to delete the discretion
given to courts to punish less than the minimum statutory sentence. This goes against the very
essence of the principles enshrined in the United Nations Convention on the Rights of the
Child. This violates the fundamental principle of non-discrimination as criminalising such
cases of romantic relationships within the age of 16-18 perpetuates gender discrimination as
the male child is treated as the child in conflict with the law. As observed by the Special
Courts in cases involving romantic relationships between minors, none of the accused were
female. Dealing with the case of a seventeen-year-old girl who did not support the
prosecution’s case, the Madras High Court, while acquitting the accused, stated that such a
“relationship invariably assumes the penal character by subjecting the boy to the rigours of
the POCSO Act” and that the boy involved in the relationship is sure to be sentenced to 7
years or 10 years as minimum imprisonment, as the case may be”. This denies the male child
his right to both personal liberty and equal protection of the law.

2. THE PERILOUS REPERCUSSIONS OF GENDER DISCRIMINATION -

PRETRIAL INCARCERATION ON THE MALE CHILD

The boy is also subjected to pre-trial incarceration based on these biassed grounds. Gender
discrimination is to the extent that the boy is being detained in juvenile facilities for a case
where two teenagers had indulged in a physical relationship out of their own free will, mutual
affection and consent while being unaware of the legal restrictions. It is to be noted that the
requirement of the presence of mens rea has not been satisfied as the act was committed
without a guilty mind and in no stage was there an involvement of coercion. Moreover the
conditions in juvenile homes, however, are not much different to that in regular prisons. As
observed in the case of Sanjay Suri vs Delhi administration juvenile prisoners have been
subjected to sexual exploitation by adult prisoners. Detaining a minor in such unsafe
situations can be detrimental to his mental health.

In a similar case in Meghalaya High Court involving two minors who engaged in sexual
intercourse while being in a romantic relationship, Justice W Deingdoh acquitted the male
child on grounds that though consent of a minor is immaterial as far as prosecution for an
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alleged offence of sexual assault is concerned, “...but considering the peculiar facts and
circumstances of a particular case, such as in a case of a boyfriend and girlfriend particularly,
if both of them are still very young, the term ‘sexual assault’ as could be understood under
the POCSO Act cannot be attributed to an act , as pointed above, mutual love and affection
between them.”

3.RECOGNITION OF FEMALE CHILD’S AUTONOMY AND WILL

The application of the pocso act to cases involving romantic relationships between minors not
only detains the male child's right to personal autonomy and privacy, which has been given to
him since birth, but also disregards the personal choices of the female child. In six cases of
consensual relationships tried before the Dindoshi court 67% of the "victim,” or the female
child, did not support the prosecution’s case. The data denotes that it was not the “victims”
who had initiated criminal action. It was mainly her family members who approached the
police, stating that their minor daughter had been kidnapped. In Dindoshi, five (56%)
informants were mothers, two each were fathers and the victim herself. The fact that the
informants were mostly the parents of the “victim” shows that the girls had no grievance
against the accused. Moreover, the high rate of girl’s turning “hostile” to the prosecution’s
allegation of penetrative sexual assault suggests that the girls were in a romantic relationship
and that such cases were filed against her will. This violates her right to privacy as her
personal sexual activities are being broadcast and prevents her from making autonomous life
choices.

Morever higher age of consent than the global average has negative impacts on the
adolescents of Jambudweepa, as creating such a legal barrier to halt the biological flow by
increasing the age of consent results in sexual perversions and furtive, secretive information-
seeking from and liaisons over dubious sources like the internet which is dangerous. As
recommended under the Justice Verma Committee Report, the age of consent under the
POCSO Act should be reduced to 16 years, as
the POCSO Act “was aimed, inter alia, to protect children from sexual assault and abuse and
not to criminalise consensual sex between two individuals, even if they are below eighteen
years of age”. The observation of the Hon’ble Madras High Court in the case of
Vijayalakshmi (supra) at para 11 is worth noting in this regard, the same reads as follows:-
“11. There can be no second thought as to the seriousness of offences under the POCSO Act
and the object it seeks to achieve. However, it is also imperative for this Court to draw the
thin line that demarcates the nature of acts that should not be made to fall within the scope of
the Act, for such is the severity of the six sentences provided under the Act. Justifiably so,
that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the
reputation and livelihood of youth whose actions would have been only innocuous. What
came to be a law to protect and render justice to victims and survivors of child abuse can,
become a tool in the hands of certain sections of society to abuse the process of law.”

3. TO WHAT EXTENT SHOULD CULTURAL VALUES AND GENUINE

PARENTAL CONCERN FOR A CHILD’S WELL-BEING INFLUENCE LEGAL
ACTION AND THE INTERPRETATION OF STATUTES CONCERNING
CONSENSUAL RELATIONSHIPS BETWEEN ADOLESCENTS WITH
REFERENCE TO THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT
2015 ?
16

The cultural values are deeply rooted in societal norms and practices. The legal system
should be sensitive to these values to ensure that the law aligns with the prevailing ethics of
the society. In the context of parental concern the family dynamics shape an individual’s
upbringing and influence their moral and ethical perspectives. The cultural values provide
insights into community expectations, societal behaviour. The parental concern for a child’s
well being is a crucial factor in decision making. Parents are often seen as primary caregivers
and protectors of their children.

It is imperative to draw a red line and establish to an extent to which cultural values and
norms can influence laws of the country. It is important to set the limit on so on and so forth.

1. The cultural practices practised in the society need not be mandated by the law.

The teenage is the crucial state of development of the child, as the age comes with all other
physical, mental states of development, and also with the desire for sexual attraction to the
opposite gender and the same sex gender.
As there are cultural practices followed by the generations, like sati, child marriage.
The law has enforced these practices not to be followed by the society, even though it is
cultural practices as this is concerning the life of others.
Same as in this case, where the society is against the teenage consensual sexual, but the need
for the laws to be amended as this would be at par with the international standards.

2. Alining with International Standards and parental controls.

Legal framework should adhere to international standards and conventions on the rights of
the child. This includes the best principles of the child, non-discrimination.
The international standards of age of consent across the globe starts at 11 years in nigeria,
angola 12 years, 14 in germany and italy, greece and france is 15 years, and united kingdom
is 16 years.
The single bench of Justice Bharati Dangre in a July 10 judgement referred to the increasing
number of cases under Pocso Act. where men are arrested and tried when the victims, being
adolescents, maintain they were in a mutually agreeable relatonship.
She said protection of children should also ‘’engage young people to extend their
boundaries’’ and exercise safe choices, “ the penal approach to adolescents’ sexuality has
impacted their life to a barrier-free access to sexual and reproductive health services. The
criminalisation of romantic relationships has overburdened the justice system.
The women’s rights activist and advocate Flavia Agnes has pointed out that higher ‘age of
consent’ works as a tool to increase parental control over adolescent girls. Which in this case
leads to the control over the girl and sometimes leading to the use of physical and mental
abuse.

3. The Hon’ble Supreme Court to Reassessing the Age of Consent under the protection
of children from sexual offences Act, 2012.

CJI DY CHANDRACHUD urges parliament to consider concerns about age of consent under
POCSO Act - Amid rising concerns pertaining to cases of mutually consenting 'romantic
relationships' falling under the purview of the POCSO Act, the Chief Justice of India DY
Chandrachud TODAY opined that the legislature should consider growing concerns relating
to the age of consent under the 2012 Act, which is 18 years.
17

The Law Commission received a reference from the Hon'ble High Court of Karnataka
(Dharwad Bench), vide letter dated 9th November, 2022, asking the Commission to rethink
on the age criteria for consent, taking into consideration the rising number of cases relating to
minor girls above the age of 16 years falling in love, eloping and having sexual intercourse
with the boy, thereby attracting the provisions of the Protection of Children from Sexual
Offences Act, 2012 ("POCSO Act") and/or the Indian Penal Code, 1860. The Commission is
also in receipt of a reference from the Hon'ble High Court of Madhya Pradesh (Gwalior
Bench), vide letter dated 19th April, 2023, wherein the Court has drawn the Commission's
attention on how the enforcement of the POCSO Act, in its present form, causes gross
injustice in cases of statutory rape where de facto consent is present. The Court further
requested the Commission to suggest amendment to the POCSO Act, vesting discretionary
power in the Special Judge to not impose the statutory minimum sentence in cases where de
facto consent is apparent on part of the girl child or where such a relationship has culminated
in marriage, with or without children.
After a careful review of existing child protection laws, various judgements and considering
the maladies of child abuse, child trafficking and child prostitution that plague our society,
the Commission is of the measured view that it is not advisable to tinker with the existing age
of consent under the POCSO Act. However, having cautiously considered all the views and
suggestions furnished in this regard, the Commission considers it necessary that certain
amendments need to be brought in the POCSO Act to remedy the situation in cases wherein
there is tacit approval in fact though not consent in law on part of the child aged between 16
to 18 years. This is so because in our considered opinion, such cases do not merit to be dealt
with the same severity as the cases that were ideally imagined to fall under the POCSO Act.
The Commission, therefore, deems it fit to introduce guided judicial discretion in the matter
of sentencing in such cases. This will ensure that the law is balanced, thus safeguarding the
best interests of the child. Accordingly, Report No. 283 titled “Age of Consent under the
Protection of Children from Sexual Offences Act, 2012” was submitted to the Ministry of
Law & Justice, Department of Legal Affairs, on 27.09
18

PRAYER

WHEREFORE, IN THE LIGHT OF ISSUES RAISED, AUTHORITIES CITED AND

ARGUMENTS ADVANCED, IT IS PRAYED THAT THIS HON’BLE COURT MAY
GRACIOUSLY PLEASED TO ADJUDGE AND DECLARE :

1. THE WRIT PETITION FILED IS MAINTAINABLE,

2. WE REQUEST THE HON’BLE COURT TO RELEASE THE CHILD CONFLICT WITH

LAW.
3. AND WE REQUEST TO CHANGE THE LAW, FROM THE AGE OF CONSENT.

ALL OF WHICH IS MOST HUMBLY AND RESPECTFULLY SUBMITTED.

AND FOR THIS ACT OF KINDNESS THE PRACTITIONER AS IN DUTY BOUND SHALL
EVER PRAY.

DATE : _____ /______/__________ COUNSEL FOR THE

PETITIONER.
PLACE : JAMBUDWEEPA

MEMORIAL FOR THE PETITIONER

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