SC sets aside Calcutta HC ruling which advised adolescent girls to control sexual urges

The Supreme Court on Tuesday set aside an order of the Calcutta high court in which it acquitted an accused in a sexual assault case and made "objectionable" observations advising adolescent girls to "control sexual urges".

A bench of Justices Abhay S Oka and Ujjal Bhuyan were delivering the judgment in a suo motu case after the high court ruling on October 18, 2023 had sparked outrage. The high court had acquitted a 20-year-old male who had engaged in sexual activity with a minor girl.

The two-judge bench also said it has passed several directions for the authorities on dealing with cases under the Protection of Children from Sexual Offences (POCSO) Act. Moreover, Justice Oka, who pronounced the verdict on behalf of the bench, said directions have also been issued on how the judgements should be written by the courts.

Don't preach

The top court had on December 8 last year criticised the verdict and termed as "highly objectionable and completely unwarranted" some observations made by the high court.

The apex court had taken cognisance of some of the observations made by a division bench of the high court and initiated a writ petition on its own, observing that judges are not expected to "preach" while writing judgements.

The SC bench expressed concern over the high court deviating from its remit to deliver an order solely on the merits of the appeal and criticised the judges for expressing personal views and preaching.

Control sexual urges: Calcutta HC

While overturning the man's conviction under the Protection of Children from Sexual Offences (POCSO) Act, the Calcutta high court had observed that female adolescents should "control sexual 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".

The high court had made the observations while hearing an appeal by a man who was awarded a 20-year sentence for sexual assault.

In the impugned judgment, it noted that the lack of recognition of consensual sexual behaviour of older adolescents had resulted in their automatic criminalisation as well as "a conflation of consensual acts with non-consensual acts".The high court also took into account the fact that the victim married the convict and that a child was born in the relationship. Also, the court had laid down a set of duties to be followed by adolescent boys and girls.

No victim-shaming: SC

The SC in his judgement also voiced its disapproval of a trend among various courts to indulge in "victim-shaming" and "stereotyping" victims of sexual assault.

Writing such judgments was absolutely wrong, said the two-member bench. Further, Justice Oka, who pronounced the verdict, said guidelines have been issued on how to write judgments.

While hearing the matter on January 4, the apex court had observed that certain paragraphs in the high court verdict were "problematic" and writing such judgements was "absolutely wrong".

Violation of rights

In its order passed on December 8 last year, the apex court referred to certain observations made by the high court and said, "Prima facie, the said observations are completely in violation of the rights of the adolescents guaranteed under Article 21(right to life and personal liberty) of the Constitution of India." It had observed the issue before the high court was about the legality and validity of the order and judgement dated September 19/20, 2022 by which a man was convicted of offences under sections 363 (kidnapping) and 366 (kidnapping, abducting or inducing woman to compel her marriage) of the Indian Penal Code as well as section 6 of the Protection of Children from Sexual Offences (POCSO) Act.

"As per the order of the Chief Justice of India, suo motu writ petition under Article 32 of the Constitution of India has been initiated mainly due to sweeping observations/findings recorded by the division bench of the high court of Calcutta in the impugned judgment," it had said.

The apex court had said in the appeal against conviction, the high court was called upon to adjudicate only on the merits of the appeal and nothing else.

"But we find that the high court has discussed so many issues which were irrelevant. Prima facie, we are of the view that while writing a judgment in such an appeal, the judges are not expected to express their personal views. They are not expected to preach," it had said.

In its verdict, the high court had acquitted the man stating that it was a case of "non-exploitative consensual sexual relationship between two consenting adolescents, though consent in view of the age of the victim is immaterial".

The high court had said it is the duty/obligation of every female adolescent to "protect her right to the integrity of her body; protect her dignity and self-worth; thrive for the overall development of herself 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".

"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 and privacy, and her right to autonomy of her body," the high court had said

No personal biases

Senior Advocate Madhavi Divan, appointed as amicus curiae, argued that judges must base their decisions on constitutional morality rather than personal biases.

The judges 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 had been prescribed under the statute.

The state of West Bengal also filed a special leave petition challenging the high court ruling on its merits. Senior Advocate Huzefa Ahmadi said criminal convictions must be strictly examined based on statutory laws.