Don’t preach, Supreme Court tells Calcutta High Court for remarks that girls are losers in sexual encounters

Taking suo motu cognisance of remarks made by the Calcutta High Court in a matter of rape of an adolescent, the Supreme Court has issued notice to the parties and asked the West Bengal government whether it wants to appeal against the judgment.

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TODAY, the Supreme Court berated remarks made by the High Court of Calcutta in an appeal against a conviction under the Protection Against the Sexual Offences Act, (POCSO) 2012 for being "highly objectionable" and "unwarranted" and "prima facie" violating "the rights of the adolescents under Article 21 of the Constitution of India".

The Supreme Court was hearing a writ petition against the judgment in Probhat Purkait@Provat versus The State of West Bengal, of the high court dated October 18, 2023.

Yesterday, a Bench of Chief Justice of India Dr D.Y. Chandrachud in In Re: Right to Privacy of Adolescent took suo motu cognisance against the remarks made by the high court in paragraph 30.3 of the judgment and listed the matter to be heard today.

In paragraph 30.3, the high court observed: "It is the duty or obligation of every female adolescent to: (i) Protect her right to integrity of her body, (ii) Protect her dignity and self-worth, (iii) [Strive] for overall development of her self-transcending gender barriers, (iv) Control sexual 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 the right to autonomy of her body and her privacy."

Today, a division Bench of Justices Abhay S. Oka and Pankaj Mithal heard the petition and observed: "We have carefully perused the judgment. The issue before the high court was on the legality and validity of the judgment dated September 19, 2022 by which the appellant was convicted for offences punishable under Sections 363 and 366 of the Indian Penal Code (IPC) as well as Section 6 of the POCSO [Act]. 

"As per the Order of the Chief Justice of India, suo motu writ petition under Article 32 has been initiated, namely due to sweeping observations and findings recorded by the division Bench of Calcutta High Court."

The court stated that in an appeal against the conviction under POCSO, the high court was only asked to decide the merits of the appeal and nothing else.

In this regard, the Bench remarked: "Prima facie, we are of the view that in such a case the honourable judges are not expected to either express their views or preach."

The court further noted: "Many parts thereof, including paragraph 30.3 are highly objectionable and completely unwarranted. Prima facie, the said observations are completely in violation of the rights of adolescents under Article 21 of the Constitution of India."

The high court has appointed advocate Madhavi Divan as amicus curiae in this case.

It has issued notices to the appellant girl and state counsel for Calcutta returnable on January 4, 2024.

The high court has given time to the court to decide whether it wants to file an against the impugned judgment.

Brief facts

The case arises from a conviction of a person under Sections 363 (punishment for kidnapping), 366 (kidnapping, abducting or inducing woman to compel her marriage), and Section 376 (punishment for rape) of the IPC and Section 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act by the additional sessions judge at Baruipur.

The sessions court awarded rigorous imprisonment of 20 years and a fine of ₹10,000 in default to suffer further rigorous imprisonment for two months under Section 6 of POCSO.

The convicted person challenged the appeal before the High Court of Calcutta.

The high court set aside the conviction under Sections 363 and 366 on the grounds of deficiency of evidence.

It invoked Section 482 of the Code of Criminal Procedure to set aside the conviction under Section 6 of the POCSO Act, Sections 376(3) and 376(2)(n) of the IPC.

As per the facts, the victim's mother registered a first information report (FIR) after the victim was found missing from the house on the evening of May 20, 2018.

The FIR was lodged on May 29, 2019. It was found that the victim had willingly left the house to marry the appellant in 2019. At that time, she was 15 years of age.

However, there are no facts on record to suggest how they met each other and developed their relationship.

She gave birth to a female child on May 16, 2021. At that time, the victim was about 17 years, 2 months and 27 days old as recorded on the birth certificate.

The police investigated the matter and filed a chargesheet against the appellant, his sister Asha Lata Halder and mother Anima Halder under Sections 363, 365 and 366 of the IPC. The appellant was also charged under Section 376(3) of the IPC and Section 6 of the POCSO Act.

When the matter came before the trial court, the court only framed charges against the appellant for offences under Sections 363, 365, 366, 376(3) and 376(2)(n) of the IPC and Sections 6 and 9 of POCSO Act.

Subsequently, it found the appellant guilty but did not regard the sentence under IPC, especially because the sentence under POCSO Act is greater than that of the punishment under Section 376(3) and 376(2)(n).

When the conviction and sentence were challenged before the high court, it granted bail to the appellant during the pendency of the appeal.

What are the arguments of the parties?

The counsel for the appellant informed the high court that the appellant comes from a rural background and he had no knowledge about the fact that by marrying the victim he has committed an offence.

The counsel also clarified that there is no allegation against the appellant that he exploited the immature emotions of the victim.

In response, the state counsel submitted that ignorance of law is no excuse.

The state had alleged that the victim was kidnapped from her house and that she did not leave the house on her own volition.

The counsel for the victim supported the arguments of the counsel for the appellant and pleaded that the victim should be saved from destitution.

What did the Calcutta High Court decide?

Justices Partha Sarathi Sen and Chitta Ranjan Dash of the Calcutta High Court held: "This appellant being ignorant and poor could not move this court within an appropriate time seeking quashing of the FIR or proceedings. He has, however, been convicted by the trial court and rightly convicted in view of the provisions contained in the POCSO Act." 

It added: "But taking into consideration the ground reality, subsequent development of birth of a child, the peculiarity of facts and especially the economic conditions of the appellant and suffering of the victim since the date of arrest of her husband who (victim) is managing the family of an ailing mother-in-law and a small child without any support by her parents, we are constrained to take a humane view of the matter to do complete justice."

The high court found this case of a non-exploitative consensual sexual relationship between a minor girl and an older adolescent.

It further stated that even if a person comes from rural background and did not have knowledge that their "free sexual mixing and marriage shall criminalise their action," they cannot escape liability for violating that law merely by being unaware of its content.

The court in this context relied on "ignorantia juris non excusat" which means ignorance of law is no excuse.

Against the allegation that the victim was kidnapped, the court found that there is no evidence to prove kidnapping.

It said: "No evidence has been led to that effect by the prosecution rather the victim ipse dixit has testified that she voluntarily walked into the house of her lover and married him."

What were the other findings of the high court?

In the 29-page judgment, the high court dealt with addressing the drafting history of the POCSO Act, referred to some statistics which stated that adolescents above the age of 16 indulge in non-exploitative consensual activities but they end up being troubled by law.

It stated: "On going through the policy behind the enactment of the POCSO Act, we find that the POCSO Act, 2012 provides a comprehensive framework… The original draft of the Bill recognised the possibility of consensual sexual activity involving adolescents above 16 years as well as the grounds on the basis of which such consent would be vitiated."

The court noted that despite the recommendations of the Justice Verma Committee on criminal reforms in 2013 to reduce the age of consent to 16 years, Section 375 of the IPC was amended and the age of consent was increased to 18 years.

In 2017, the marital rape exception of the IPC, as per which sexual intercourse by a man with his wife not below 15 years would not constitute rape was read down by the Supreme Court in Independent Though versus Union of India & Anr (2017).

The court also noted that when two minors are involved in a sexual relationship, the Juvenile Justice (Care and Protection of Children) Act, 2015 is applicable with the possibility of a child above 16 years being tried as an adult for heinous offences.

In this context, the court noted that sexual behaviour, particularly from the onset of puberty, is natural, normative and an integral part of adolescent development and their transition into an adult.

The court stated that the law disproportionately affects adolescents in consensual and non-exploitative relationships and renders them vulnerable to criminal prosecution.

"By equating consensual and non-exploitative sexual acts with rape and (aggravated) penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents," the court averred.

The court further said: "The law also undermines the identity of adolescent girls by unidimensionally casting them as 'victims', rendering them voiceless, and without any agency to enter into relationships or choose their partners."

The court finally concluded: "The POCSO Act lumps all persons below 18 years together without consideration for their developing sexuality, evolving capacity and the impact of such criminalisation on their best interests. It fails to strike an effective balance between protecting adolescents against sexual abuse and recognising their normative sexual behaviour."

The court recommended that a legal amendment is necessary for decriminalising consensual sexual acts involving adolescents above 16 years, while also ensuring that all children below 18 years are protected from sexual offences under the POCSO Act.

It looked at various statistics to substantiate its findings.

The court then dealt with how sexual urges are stimulated. 

It noted: "The principal androgenic steroid is testosterone, which is secreted primarily from the testes in men and ovaries in women and in small amounts from the adrenal glands, both in men and women. Hypothalamus and pituitary gland control the amount of testosterone, which is primarily responsible for sex urge and libido (in men).

"Its existence is there in the body, so when the respective gland becomes active by stimulation, sexual urge is aroused. But activation of the respective responsible gland is not automatic. It needs stimulation by our sights, hearing, reading erotic materials and conversation with the opposite sex. So sexual urges are created by our own actions."

In this context, the court noted that sex in adolescents is normal.

But it added: "But sexual urge or arousal of such urge is dependent on some action by the individual, may be a man or woman. Therefore, sexual urges are not at all normal and normative. If we stop some action(s), arousal of sexual urge, as advocated in our discussion supra, ceases to be normal."z

The court went on to propose a "duty or obligation"-based approach to protect female and male adolescents in the subsequent paragraphs which were flagged by the Supreme Court.

Click here to read the order.