LEGISLATING FROM THE BENCH: HOW HIGH COURTS ARE ENFORCING A 'ROMEO-JULIET' EXCEPTION THAT PARLIAMENT REFUSED TO ENACT

The statutory framework governing sexual offenses in India, primarily codified under the Protection of Children from Sexual Offences (POCSO) Act, 2012, maintains a "strict liability" approach toward the age of consent. Despite consistent legislative deliberations and specific recommendations from the Law Commission of India, Parliament has steadfastly refused to incorporate a "Romeo-Juliet" exception, a legal proviso that would decriminalize or mitigate sentencing for consensual sexual acts between adolescents of similar age. However, a growing body of jurisprudence from various High Courts reveals a judicial trend toward "legislating from the bench." By quashing First Information Reports (FIRs) and invoking inherent powers under Section 482 of the Code of Criminal Procedure (now Section 528 of the Bharatiya Nagarik Suraksha Sanhita), the judiciary is effectively carving out an extra-statutory exception based on "equities" and the "social reality" of adolescent romance. This article examines the constitutional tension between judicial empathy and legislative intent, arguing that while the judicial impulse to prevent the "criminalization of adolescence" is socially sound, the method of enforcement challenges the doctrine of separation of powers and necessitates a formal legislative amendment to ensure legal certainty and constitutional harmony.