SC sets aside Calcutta HC order asking adolescent girls to control sexual urge
The court said the matter ought to have been sent to the Juvenile Justice Board as the Juvenile Justice Act had several provisions to look after the victim till she turned 21.
The Supreme Court on Tuesday set aside the contentious Calcutta high court order of last year that asked adolescent girls to control their sexual urge and restored the conviction under rape charges against a man accused of sexually assaulting a minor and later marrying her.
A bench headed by justice AS Oka said that the matter ought to have been sent to the Juvenile Justice Board as the Juvenile Justice Act had several provisions to look after the victim till she turned 21.
Faced with a situation where the victim girl chose to stay with the accused, the bench ordered the setting up of an independent committee of experts, including one from the Tata Institute of Social Sciences, to ascertain the wish of the victim whether she intended to continue with the accused or was willing to be rehabilitated.
The court directed West Bengal to give details to the committee on the income and accommodation they would provide the victim and the child if she decides not to reside with the accused. The court will announce the sentence against the accused once the committee submits its report.
The apex court also passed a slew of directions on how judgments must be written as the remarks by the Calcutta HC faced criticism from SC, which decided to examine the larger issue on whether personal views of judges could form part of the judgment. It also asked states to enforce provisions under Protection of Children from Sexual Offences Act 2012 (POCSO) and Juvenile Justice (Care and Protection of Children) Act, 2015.
{{/usCountry}}The apex court also passed a slew of directions on how judgments must be written as the remarks by the Calcutta HC faced criticism from SC, which decided to examine the larger issue on whether personal views of judges could form part of the judgment. It also asked states to enforce provisions under Protection of Children from Sexual Offences Act 2012 (POCSO) and Juvenile Justice (Care and Protection of Children) Act, 2015.
{{/usCountry}}The judgment of October 18, 2023, contained sweeping observations unsupported by academic or scientific sources. The HC said it was the “duty or obligation of every female adolescent to protect her right to integrity of her body, dignity and self-worth, control sexual urge as in the eyes of the society she is the looser when she gives in to enjoy the sexual pleasure of hardly two minutes and protect her right to autonomy of her body and her privacy”.
{{/usCountry}}The judgment of October 18, 2023, contained sweeping observations unsupported by academic or scientific sources. The HC said it was the “duty or obligation of every female adolescent to protect her right to integrity of her body, dignity and self-worth, control sexual urge as in the eyes of the society she is the looser when she gives in to enjoy the sexual pleasure of hardly two minutes and protect her right to autonomy of her body and her privacy”.
{{/usCountry}}The top court had earlier stayed the observations contained in the judgment.
The West Bengal government too had appealed against the judgment and the top court appointed senior advocates Madhavi Divan and Liz Mathew as amici curiae to assist the court in passing directions.
“The judgment fails to recognize that bodily autonomy is the preserve of the dignity of individuals,” Divan said.
On the HC’s reasoning that rights are an entitlement for only those adolescents who are not wayward and are not sexually disciplined, she said, “This view fails to account for the prevalent social milieu which no longer views sex as merely procreative.”
The court noted that the girl’s mother had filed a complaint in 2018 where the accused was charged for kidnapping and rape under the Indian Penal Code (IPC), Prohibition of Child Marriage Act and sexual assault under Section 6 of POCSO, which carries a minimum sentence of 20 years.
The bench said the 14-year-old had no choice as her family did not let her decide, and she had to go back to the accused. The court observed that the HC failed to carry out any counseling of the girl or engage an expert social scientist body like TISS to ascertain her free will.
“She can make an informed choice only if she becomes comfortable. She has to be first convinced about it by some counsellor or psychologist to tell her this is an option with you even if you decide to stay away from this man and the state will take care of you.” This prompted the court to ascertain the victim’s wish.
