A Supreme Court bench comprising Chief Justice of India Surya Kant issued notice on a PIL arguing that while children below 18 cannot legally enter into contracts, they are allowed to create accounts online independently, which often require agreeing to terms and service policies.

Filed by the Just Rights for Children Alliance, the PIL contends that this legislative gap exposes children to risks ranging from online grooming and trafficking to cyberbullying and misuse of personal data. It asks the Supreme Court to direct the Centre to frame mechanisms to ensure that minors do not enter into platform agreements without verified parental consent.

Unable to contract

Section 11 of the Indian Contract Act, 1872, bars a minor from entering into a contract. It states that, “Every person is competent to contract who is of the age of majority according to the law to which he is subject and who is of sound mind.” Any contract or agreement a minor enters into is treated as void ab initio.

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The PIL states that despite this legal position, social media intermediaries and digital platforms operating in India permit children, often from the age of 13 years, to independently create and maintain accounts by merely declaring their age or date of birth.

It contends that creating an account on a digital platform requires users to accept contractual terms governing their relationship with the platform, including terms of service, privacy policies and community guidelines.

The PIL further states that while Section 10A of the Information Technology Act, 2000, recognises contracts formed through electronic means, it does not confer contractual competence on persons otherwise incapable of contracting under Section 11 of the Contract Act. “The technological form of acceptance, including click-wrap acceptance or continued use of a platform, cannot therefore alter the substantive legal capacity of a minor,” the PIL states.

Inadequate legislation

The PIL argues that Indian law does not adequately prevent minors from independently creating online accounts. It says the commonly used minimum age of 13 is derived from foreign standards rather than Indian law.

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The DPDP Act, 2023 requires parental consent before a child’s personal data is processed. The PIL, however, states that “neither the DPDP Act nor the rules framed thereunder expressly prohibit a person below eighteen years from independently creating or maintaining an account on a digital platform nor does it prescribe a uniform mechanism for preventing such independent enrolment.”

The PIL says the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, framed under the IT Act, are “conspicuously silent” on a minor’s contractual capacity and do not provide for meaningful age verification, parental authentication or age-gating mechanisms.

Describing the existing practice as a “bare minimum age gate”, it argues that merely entering a date of birth is not an effective safeguard. It therefore proposes that a legal framework should instead mandate “accountability mechanisms” and “effective and verifiable age-assurance and age-gating mechanisms” as part of a broader “prevention by design approach.”

Alternative framework

The PIL stops short of seeking a complete prohibition on children using the internet. It proposes that minors continue to access online services through accounts “maintained and controlled by their parents or lawful guardians”, while retaining access to “lawful educational and age-appropriate digital content” under a prescribed framework.

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It states that such a framework could only be worked out by amending the IT Rules 2021, to require parental consent through verified e-KYC. It also contends that child safety cannot rely on self-declared age alone.