THE PARADOX OF PROTECTION: ADOLESCENT AUTONOMY VERSUS MANDATORY PROSECUTION UNDER THE BHARATIYA NYAYA SANHITA, 2023 AND THE POCSO ACT, 2012

AUTHOR – HARINISHREE.K.K* & MRS.JISHA.J.S**

* STUDENT AT VELS INSTITUTE OF SCIENCE, TECHNOLOGY & ADVANCED STUDIES (VISTAS)

** ASSISTANT PROFESSOR AT SCHOOL OF LAW, VELS INSTITUTE OF SCIENCE, TECHNOLOGY AND ADVANCED STUDIES (VISTAS)

BEST CITATION – HARINISHREE.K.K & MRS.JISHA.J.S,THE PARADOX OF PROTECTION: ADOLESCENT AUTONOMY VERSUS MANDATORY PROSECUTION UNDER THE BHARATIYA NYAYA SANHITA, 2023 AND THE POCSO ACT, 2012, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (8) OF 2026, PG. 173-182, APIS – 3920 – 0001 & ISSN – 2583-2344.

Abstract

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Bharatiya Nyaya Sanhita, 2023 (BNS) together constitute the primary legislative architecture governing sexual offences against children in India. While these statutes serve a compelling protective function, their categorical prohibition of all sexual activity involving persons below the age of eighteen years irrespective of consent, the nature of the relationship, or the age differential between the parties has produced a paradox: the law designed to shield adolescents from exploitation simultaneously criminalises consensual peer relationships, exposing young persons to the very harms of stigma, trauma, and systemic injustice that protective legislation seeks to prevent. This article undertakes a critical doctrinal and comparative analysis of the tension between adolescent autonomy and mandatory prosecution under the POCSO Act and the BNS. Drawing upon constitutional principles embedded in Articles 14, 19, and 21 of the Constitution of India, the evolving capacities doctrine of the United Nations Convention on the Rights of the Child (UNCRC), and the best interests of the child standard, the article demonstrates that the current framework is disproportionate in its application to consensual adolescent relationships. The absence of a proximity-in-age exception, the mandatory reporting obligation under Section 19 of the POCSO Act, the limited scope for prosecutorial and judicial discretion, and the weaponisation of these statutes in cases involving inter-caste or inter-religious relationships collectively reveal a structural lacuna in the Indian legal order. Through a comparative survey of the legal frameworks of the United Kingdom, Canada, the United States, the Netherlands, and South Africa, the article identifies best practices and proposes a set of targeted legislative, judicial, and institutional reforms aimed at reconciling the protective objectives of the existing legislation with the recognition of adolescent agency and the evolving capacities of young persons.

Keywords: POCSO Act, Bharatiya Nyaya Sanhita, adolescent autonomy, age of consent, mandatory prosecution, proximity-in-age exception, evolving capacities, child sexual offences, India, criminal law reform.