Legally Speaking | A look at the Supreme Court's judgment on the right to privacy of adolescents
Extraneous considerations with regard to the trends in society or personal opinions of the judge cannot replace the law.
On August 20, the Supreme Court of India (SC) reversed the findings of the Calcutta High Court judgment acquitting a person for an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO). In its judgment in the matter referred to as In Re: Right to Privacy of Adolescent, Justice Abhay Oka noted, “The Judge has to decide a case and not preach. The judgment cannot contain irrelevant and unnecessary material. A judgment must be in simple language and should not be verbose. Brevity is the hallmark of quality judgment.”
On December 8, the SC took suo motu cognisance of a judgment rendered by the division bench of the Calcutta High Court, in an appeal challenging a conviction under POCSO. The High Court while acquitting the assailant made several observations on the nature of adolescent relationships and carved out what it termed to be certain duties of adolescent girls which included among other things the duty to, “(iv) Control sexual urge/urges as in the eyes of the society she is the loser (sic) when she gives in to enjoy the sexual pleasure of hardly two minutes.”
The SC admitting the matter appointed senior advocate Madhavi Divan and Advocate Liz Mathew as amicus curiae.
The brief facts of the case are that on May 20, 2018, the victim, a 14-year-old girl, left her house. Her mother learnt that the girl was residing with the accused aged 25 years. The mother subsequently lodged an FIR on May 29, 2018, against the accused for charges of sexual assault and kidnapping. The accused was arrested over two years later on December 19, 2021.
Meanwhile, the victim who was staying with the accused, gave birth to a child in 2021. Noting the age of the victim as 14 years at the time of the offence, the trial court convicted the accused to 20 years imprisonment and held him guilty of penetrative and aggravated penetrative sexual assault under POCSO.
The trial court’s order was challenged before the High Court, which using its inherent powers under Section 482 and plenary power under Article 226 set aside the conviction. The High Court on the first hearing in July 2023, had also granted bail to the convict, who had been imprisoned since his arrest in December 2021.
However, the acquittal of the High Court was not based on the law but on observations, surmises and inferences drawn by the judges. The law under POCSO is very clear: S. 2(d) defines any person below the age of eighteen to be a child. Thus, the victim being 14 years old at the time of the offence was a child and sexual intercourse would be deemed as penetrative sexual assault.
Further, in this case, the victim became pregnant hence the sexual assault would fall within the definition of aggravated penetrative sexual assault. Thus, the law is very clear that based on the facts an offence under POCSO has been committed.
The High Court in its judgment went into detail on sexual relations of adolescents and what it coined as “‘consensual’ sexual relations among adolescents and between older adolescents and adults” and “non-exploitative sexual activities by adolescents”. It also conjectured that lack of reignition of consensual sexual behaviour of older adolescents or romantic relationships led to automatic criminalisation. It was while expanding on these concepts that the Court enumerated what it termed to be the “Duties of adolescents”.
The High Court effectively overruled the law laid by the legislature and suo motu created an exception for consensual non-exploitative sexual relations between older adolescents, which had no basis in law.
The SC, on August 20, overruled this judgment and noted that there was no need to make the observations and that at the most those issues could be debated by experts in a different forum. The Court noted, “…it (High Court) forgot that in the facts of the case, the Court was not dealing with the sexual acts involving adolescents above sixteen years, as the age of the victim was fourteen years, and the accused was twenty-five years at the relevant time.”
The apex court also noted that the plight of the victim who had been abandoned by her biological parents and received no support, forcing her to stay with the accused reflected a complete failure of the State machinery. The failure of the State machinery was evident from the beginning due to the unexplained delay in arresting the accused. The Court proceeded to note that the welfare provisions of the POCSO Act in the form of informing the Child Welfare Committee within 24 hours of being informed about the commission of an offence were not complied with. The Court also went on to observe that a victim under POCSO was also a child in need of care and the Child Welfare Committee should be informed so that it can exercise its power to protect the child.
The Court said: “If sub-section (6) of Section 19 is implemented in relation to the victims of the offences under the POCSO Act and thereafter, the CWC strictly implements the provisions of the JJ Act which we have referred to above, no victim will face the situation which the victim in this case had to face.”
The SC directed the state of West Bengal to constitute a committee of three experts including a clinical psychologist and a social scientist. The Committee with the assistance of the State will meet the victim provide her with a concrete list of what the State Government will offer and assist her in making an informed choice about her future. The findings of the committee are to be communicated by October 18, 2024. The Court noted that the sentence to be served by the accused will be determined based on the findings of the report.
Consent is premised on the fact that the person consenting is aware of not only the nature of the act but also the consequences of the act. The reason the law provides an age of consent is because of the assumption that an immature person might have consented to a false belief or not been aware of what they are consenting to. While the age of consent may be changed with time, the forum to debate the same is a legislature and not a Court.
For instance, the High Court in its hurry to carve out exception failed to hold the State accountable for its failure. Perhaps, had the state provided the required support to the victim she might not be in the position she is in.
Judgments, as noted by the SC, should be based on the facts of the case and the law of the land. Extraneous considerations with regard to the trends in society or personal opinions of the Judge cannot replace the law. Allowing the same will lead us to a dangerous path where the outcome of the proceeding will not be decided based on the rule of law but in a court of opinion.
Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.
On August 20, the Supreme Court of India (SC) reversed the findings of the Calcutta High Court judgment acquitting a person for an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO). In its judgment in the matter referred to as In Re: Right to Privacy of Adolescent, Justice Abhay Oka noted, “The Judge has to decide a case and not preach. The judgment cannot contain irrelevant and unnecessary material. A judgment must be in simple language and should not be verbose. Brevity is the hallmark of quality judgment.”
On December 8, the SC took suo motu cognisance of a judgment rendered by the division bench of the Calcutta High Court, in an appeal challenging a conviction under POCSO. The High Court while acquitting the assailant made several observations on the nature of adolescent relationships and carved out what it termed to be certain duties of adolescent girls which included among other things the duty to, “(iv) Control sexual urge/urges as in the eyes of the society she is the loser (sic) when she gives in to enjoy the sexual pleasure of hardly two minutes.”
The SC admitting the matter appointed senior advocate Madhavi Divan and Advocate Liz Mathew as amicus curiae.
The brief facts of the case are that on May 20, 2018, the victim, a 14-year-old girl, left her house. Her mother learnt that the girl was residing with the accused aged 25 years. The mother subsequently lodged an FIR on May 29, 2018, against the accused for charges of sexual assault and kidnapping. The accused was arrested over two years later on December 19, 2021.
Meanwhile, the victim who was staying with the accused, gave birth to a child in 2021. Noting the age of the victim as 14 years at the time of the offence, the trial court convicted the accused to 20 years imprisonment and held him guilty of penetrative and aggravated penetrative sexual assault under POCSO.
The trial court’s order was challenged before the High Court, which using its inherent powers under Section 482 and plenary power under Article 226 set aside the conviction. The High Court on the first hearing in July 2023, had also granted bail to the convict, who had been imprisoned since his arrest in December 2021.
However, the acquittal of the High Court was not based on the law but on observations, surmises and inferences drawn by the judges. The law under POCSO is very clear: S. 2(d) defines any person below the age of eighteen to be a child. Thus, the victim being 14 years old at the time of the offence was a child and sexual intercourse would be deemed as penetrative sexual assault.
Further, in this case, the victim became pregnant hence the sexual assault would fall within the definition of aggravated penetrative sexual assault. Thus, the law is very clear that based on the facts an offence under POCSO has been committed.
The High Court in its judgment went into detail on sexual relations of adolescents and what it coined as “‘consensual’ sexual relations among adolescents and between older adolescents and adults” and “non-exploitative sexual activities by adolescents”. It also conjectured that lack of reignition of consensual sexual behaviour of older adolescents or romantic relationships led to automatic criminalisation. It was while expanding on these concepts that the Court enumerated what it termed to be the “Duties of adolescents”.
The High Court effectively overruled the law laid by the legislature and suo motu created an exception for consensual non-exploitative sexual relations between older adolescents, which had no basis in law.
The SC, on August 20, overruled this judgment and noted that there was no need to make the observations and that at the most those issues could be debated by experts in a different forum. The Court noted, “…it (High Court) forgot that in the facts of the case, the Court was not dealing with the sexual acts involving adolescents above sixteen years, as the age of the victim was fourteen years, and the accused was twenty-five years at the relevant time.”
The apex court also noted that the plight of the victim who had been abandoned by her biological parents and received no support, forcing her to stay with the accused reflected a complete failure of the State machinery. The failure of the State machinery was evident from the beginning due to the unexplained delay in arresting the accused. The Court proceeded to note that the welfare provisions of the POCSO Act in the form of informing the Child Welfare Committee within 24 hours of being informed about the commission of an offence were not complied with. The Court also went on to observe that a victim under POCSO was also a child in need of care and the Child Welfare Committee should be informed so that it can exercise its power to protect the child.
The Court said: “If sub-section (6) of Section 19 is implemented in relation to the victims of the offences under the POCSO Act and thereafter, the CWC strictly implements the provisions of the JJ Act which we have referred to above, no victim will face the situation which the victim in this case had to face.”
The SC directed the state of West Bengal to constitute a committee of three experts including a clinical psychologist and a social scientist. The Committee with the assistance of the State will meet the victim provide her with a concrete list of what the State Government will offer and assist her in making an informed choice about her future. The findings of the committee are to be communicated by October 18, 2024. The Court noted that the sentence to be served by the accused will be determined based on the findings of the report.
Consent is premised on the fact that the person consenting is aware of not only the nature of the act but also the consequences of the act. The reason the law provides an age of consent is because of the assumption that an immature person might have consented to a false belief or not been aware of what they are consenting to. While the age of consent may be changed with time, the forum to debate the same is a legislature and not a Court.
For instance, the High Court in its hurry to carve out exception failed to hold the State accountable for its failure. Perhaps, had the state provided the required support to the victim she might not be in the position she is in.
Judgments, as noted by the SC, should be based on the facts of the case and the law of the land. Extraneous considerations with regard to the trends in society or personal opinions of the Judge cannot replace the law. Allowing the same will lead us to a dangerous path where the outcome of the proceeding will not be decided based on the rule of law but in a court of opinion.
Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.