Supreme Court Sets Aside Calcutta High Court Judgment Containing Controversial Remarks About Adolescent Sexual Behaviour

The Supreme Court on Tuesday (August 20) delivered its judgment in a suo motu case titled "In Re: Right to Privacy of Adolescents," which was initiated over the controversial remarks made by the Calcutta High Court in a judgment delivered on October 18, 2023.A bench comprising Justices Abhay S Oka and Ujjal Bhuyan set aside the High Court's judgment and its controversial remarks such as adolescent girls should control their sexual urges. The High Court acquitted a young man aged 25 years who engaged in sexual activity with a minor girl.Justice Oka, who pronounced the verdict, said that guidelines have been issued regarding how to write judgments(detailed report on this aspect can be read here). As regards the facts of the case, Justice Oka said that the conviction of the accused under Section 6 of the POCSO Act, Sections 376(3) and 376(2)(n) I.P.C have been restored.Justice Oka also said that directions have been issued to the States to implement provisions of Section 19 (6) of POCSO Act along with Sections 30 to 43 of the Juvenile Justice Act.Justice Oka further said that a committee of experts has been constituted to help the victim in the case to take an informed choice regarding her future.The HC, while overturning the conviction of a 25-year-old man under the Protection of Children from Sexual Offences Act (POCSO Act) 2012, made sweeping observations on the sexual behaviour of adolescents, particularly teenage girls.The HC, in the impugned judgment, exercised its powers under Section 482 (inherent powers to secure the ends of justice) of the CrPC after noting that the lack of recognition of consensual sexual behaviour of older adolescents has resulted in their automatic criminalisation, as well as "a conflation of consensual acts with non-consensual acts". The HC took into account the fact that the victim married the convict and that a child was born in the relationship.The Calcutta High Court bench of Justices Chitta Ranjan Dash & Partha Sarathi Sen laid down a set of duties to be followed by adolescent boys and girls :“It is the duty/obligation of every female adolescent to:(i) Protect her right to integrity of her body.(ii) Protect her dignity and self-worth.(iii) Thrive for overall development of her self-transcending gender barriers.(iv) Control sexual urge/urges as in the eyes of the society she is the looser when she gives in to enjoy the sexual pleasure of hardly two minutes.(v) Protect her right to autonomy of her body and her privacy.It is the duty of a male adolescent to respect the aforesaid duties of a young girl or woman and he should train his mind to respect a woman, her self-worth, her dignity & privacy, and right to autonomy of her body.”The bench further noted that “sex in adolescents is normal but sexual urge or arousal of such urge is dependent on some action by the individual, may be a man or woman. Therefore, sexual urge is not at all normal and normative.”The HC also emphasized the absence of provisions in the POCSO Act to address consensual, non-exploitative relationships between adolescents aged 16-18.These remarks led the Supreme Court to take suo motu cognizance, highlighting that the observations were not only "highly objectionable" but also "completely unwarranted," as they violated the rights of adolescents under Article 21 of the Constitution. The Supreme Court expressed concern over the HC's deviation from its remit to decide solely on the merits of the appeal, criticizing the judges for expressing personal views and preaching.During the hearings, the Supreme Court voiced disapproval of the general trend of various Courts to indulge in "victim-shaming" and "stereotyping" victims of sexual assault. The Court also said that writing such judgments is absolutely wrong. The Supreme Court emphasized that the exercise of individual rights should not be made contingent upon fulfilling socially defined duties, particularly those imposed on women.Senior Advocate Madhavi Divan, appointed as amicus curiae, argued that the HC's observations lacked any empirical or social reasoning and were disconnected from reality. She underscored that judges must base their decisions on constitutional morality rather than personal biases.The Supreme Court also questioned the HC's authority to invoke Section 482 of the CrPC in an appeal to set aside a conviction on the ground that POCSO should be amended to recognize adolescent sexuality. The Court further questioned the remit of the high court to set aside a conviction under the POCSO Act, merely on the basis that the sexual intercourse was with 'consent', when a minimum punishment has been prescribed under the statute, in the absence of a constitutional mandate to do 'complete justice' that is enjoyed by the top court.The State of West Bengal also filed a special leave petition challenging the HC's judgment on its merits. The State's counsel, Senior Advocate Huzefa Ahmadi, argued that the High Court had misused its powers under Section 482 of...

Supreme Court Sets Aside Calcutta High Court Judgment Containing Controversial Remarks About Adolescent Sexual Behaviour

Amisha Shrivastava

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