The Supreme Court has urged the Union government to consider introducing a “Romeo-Juliet” clause to protect consensual adolescent relationships from criminal action under the Protection of Children from Sexual Offences Act.

The court said on Friday that such a clause should exempt “genuine adolescent relationships from the stronghold of this law” and should put in place a mechanism enabling the prosecution “of those persons who, by the use of these laws, seeks to settle scores, etc”.

A “Romeo Juliet” clause is a legal exemption to statutory rape laws where the age difference between the persons involved is low and the relationship is consensual.

A bench of Justices Sanjay Karol and NK Singh made these observations while setting aside a set of directions issued by the Allahabad High Court in a bail case under the POCSO Act.

The High Court had directed that in cases under the Act, the police must conduct medical tests to determine the age of the victim at the very start of the investigation. Bail courts should assess these medical reports, and determine the credibility of age-related documents such as school or birth certificates, the High Court had said.

The Supreme Court, however, said that the High Court exceeded its jurisdiction by passing such orders in response to a bail petition. The top court said that the directions contravened the provisions of the Juvenile Justice Act.

Section 94 of the Juvenile Justice Act says that age of a person should be determined on the basis of a matriculation or equivalent certificate from the school, failing which a birth certificate issued by a municipal body or panchayat can be relied upon. Medical tests such as ossification tests should be ordered only in the absence of these documents, the provision states.

Although the Supreme Court on Friday set aside the directions on age determination, it did not interfere with the High Court’s order granting bail to a man accused of kidnapping a minor and sexually assaulting her.

The bench said that courts have repeatedly seen cases in which the age of a woman is falsely shown to be below 18 years so that the provisions of the POCSO Act can be invoked against the man.

The misuse of the POCSO Act “highlights a grim societal chasm”, the court said.

“…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 court said.

The bench directed that a copy of the judgement be sent to the Union law secretary so that the ministry could “consider initiation of steps as may be possible to curb this menace”.

Also read: Why the protection of teenagers needs to be balanced with respecting their sexual autonomy