‘Highly objectionable’: SC criticises HC for trying to advise adolescents | Latest News India - Hindustan Times
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‘Highly objectionable’: SC criticises HC for trying to advise adolescents

Dec 09, 2023 08:22 AM IST

The high court’s judgment added that “in the eyes of the society she (a female adolescent) is the loser when she gives in to enjoy the sexual pleasure of hardly two minutes”

New Delhi Judges are not expected to “preach” through their orders and judgments, the Supreme Court asserted on Friday as it partially stayed an October 18 Calcutta high court judgment that suggested every female adolescent should “control sexual urges” and “protect her right to integrity of her body”.

The order further recorded that the suo motu proceedings were initiated at the instance of Chief Justice of India Dhananjaya Y Chandrachud (PTI)
The order further recorded that the suo motu proceedings were initiated at the instance of Chief Justice of India Dhananjaya Y Chandrachud (PTI)

The high court’s judgment added that “in the eyes of the society she (a female adolescent) is the loser when she gives in to enjoy the sexual pleasure of hardly two minutes”.

Disapproving of the high court’s opinions and staying the portion in the judgment that dealt with “model behaviour” for adolescents, a bench of justices AS Oka and Pankaj Mithal called the impugned observations “highly objectionable and completely unwarranted”.

“Judges are not expected to express their personal views or preach... The said observations are completely in violation of the right of the adolescents under Article 21 (right to live with dignity) under the Constitution,” said the bench in proceedings that were initiated suo motu (on its own motion).

The bench, in its order, also recorded that the counsel for the West Bengal government has asked for some time to come back with instructions on whether the state has already moved an appeal against the contentious remarks of the high court or that it is planning to do so.

Senior advocate Madhavi Divan was appointed as an amicus curiae by the court to assist it in the matter, and advocate Liz Mathew was requested to assist Divan.

The order further recorded that the suo motu proceedings were initiated at the instance of Chief Justice of India (CJI) Dhananjaya Y Chandrachud.

Deciding a case under the Protection of Children from Sexual Offences (Pocso) Act, a division bench of the Calcutta high court noted that though it is normal for each adolescent to seek the company of the opposite sex, “it is not normal for them to engage in sex devoid of any commitment and dedication”.

Outlining a set of “duties” for adolescent girls and boys concerning sexual urges and relationships, the high court said girls should protect their “dignity” and “self-worth” and strive for “overall development”.

For male adolescents, it said, they should “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 and privacy, and right to autonomy of her body”.

And for female adolescents, it said, “It is the duty/obligation of every female adolescent to protect her right to integrity of her body; protect her dignity and self-worth; thrive for overall development of her self transcending gender barriers; control sexual urge/urges as in the eyes of the society she is the loser when she gives in to enjoy the sexual pleasure of hardly two minutes; protect her right to autonomy of her body and her privacy.”

In a similar instance in the past, the Supreme Court, by a judgment in March 2021, issued detailed guidelines on how cases involving sexual assault must be handled as it emphasised on the need to cultivate sensitivity among judges and lawyers.

The judgment directed all courts in the country to desist from commenting upon the clothes, behaviour, past conduct, morals or chastity of women, or suggest any “compromise formula” while deciding cases of sexual offences. Stressing that “entrenched paternalistic and misogynistic attitudes that are regrettably reflected at times in judicial orders’’ must be forbidden, the top court has issued a slew of directives, along with a checklist for the judges, to eliminate social bias from entering the judicial reasoning. It underlined that the use of reasoning or language which diminished the offence and trivialized the survivor had to be avoided under all circumstances.

Citing specific illustrations, the 2021 judgment held: “The following conduct, actions or situations are hereby deemed irrelevant, e.g. -- to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or “Indian” women, or that she had called upon the situation by her behaviour, etc.”

The 2021 judgment came while setting aside a July 2020 order of the Madhya Pradesh high court that asked a molestation case accused to get a rakhi tied from the complainant as a condition of bail. The top court held that this order transformed a molester into a brother by a judicial mandate, and thus, reflected adversely on the entire judicial system of the country.

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