When the Courts Preach

The Supreme Court of India has dealt with a situation where the Calcutta High Court has advised young girls that, “It is the duty/obligation of every female adolescent to control sexual urge/urges…” control their sexual urges and young boys to respect the dignity of women and not indulge in any sexual activity unless they are in a position to maintain a family.
A 14-year-old girl is alleged to have married a 25-year-old adult. A child was born out of their alleged wedlock.

The mother of the girl did not accept the above marriage and completely abandoned the girl and also the minor daughter of that girl. The allegation is that the other two elder sisters of that minor girl facilitated the elopement of that minor girl with the 25-year-old adult. Therefore, it is interesting for me to see whether the mother has also abandoned the other two elder sisters as well.

The mother lodged a complaint with the police. The police registered an FIR incorporating the sections of rape and the POSCO Act.

The trial court convicted the 25-year-old adult under the charges of rape and the POCSO Act.

The accused filed an appeal against the order of the court before the High Court.

The High Court opined that the accused cannot be convicted under the charges of rape and the POSCO Act. The reason was that the accused had indulged in a ‘non-exploitative and consensual sexual intercourse’ with the 14-year-old minor girl. It observed that the accused shall not be sent to jail because he takes care of the minor girl and their daughter.

In the above backdrop, the High Court gave the following advice to the youth of the country:-

For young girls, it said— they shall not indulge in any sexual intercourse without first considering the consequences that may follow thereafter. And that the enjoyment of 2 minutes can destroy their whole life.

For young boys, it said— they shall indulge in sexual intercourse only when they have acquired financial stability to maintain a family.

It was predicted by the High Court that sex would come along the way to the boys if they are able to establish themselves.

The High Court adopted a duty-based approach to the problem of young boys and girls exploring their sexual preferences before attaining majority.

The High Court said that the Constitution, though confers an individual with the right of choice, a right is coupled with a duty, and the duty shall precede the exercise of that right, meaning if one fails in his or her duty, he or he shall stand bereft of his or her right.

The Supreme Court took suo moto cognizance of the observations as regards the advice made by the Calcutta High Court. Later, the State of West Bengal also filed an appeal challenging the acquittal of the accused by the Calcutta High Court.

The Supreme Court held that the adult boy is liable to be convicted under the charges of rape and the POSCO Act. It observed that the High Court has imported the concept of non-exploitative sexual intercourse which is not found in the statute or any other law of the land.

The Supreme Court held that a Court is to decide cases but not preach through the cases coming before it.

On the question of whether the young adult boy is liable to be convicted, the Supreme Court said that under the definition of ‘rape’, any sexual intercourse with a woman before she has attained the age of 18 will constitute a crime and therefore, the accused having indulged with a minor girl of 14 years is liable to be convicted under the charge of rape. It was observed that the boy was not a teenager, therefore, the present sexual intercourse between the girl of 14 years and the boy of 25 years cannot be termed as sexual intercourse between adolescents. 

In my understanding, the court said that the above sexual intercourse is not a reaction or the outcome of the sexual expression of two smart and rich teenagers in a metropolitan city. It was rather an adult having sexual intercourse with a minor girl.

The Supreme Court observed that the minor girl of 14 years was not in a position to make an informed decision. Therefore the consent given by the girl to the adult is inconsequential.

The Calcutta High Court has described the demeanour and dressing sense of the 14-year-old girl in the following way:-

"We feel it prudent to mention here that we noticed a rustic lady with a rumpled saree and unkempt hair, looking more aged than her age standing in a corner of the Court with a baby in her arms."

The Supreme Court held the State of West Bengal is at fault for not complying with the POCSO Act and the Juvenile Justice Act. The said legislations mandate the State to take care of a victim minor girl and to also take care of any child given birth by a girl. The hands of the law go to the extent of mandating the State to take care of the minor girl till she attains 23, and on attaining the said age, the State is to engage with its networks to ensure that the woman, once a minor, gets employed. The State is also to bear the expenses of the child of the minor girl till she attains majority. 

In the present case, the State has not complied with the said mandates. 

The discussion on the duty of the State to take care of the minor girl has been made to answer the point that the accused has taken care of the victim minor girl and their daughter at a time when they were abandoned by her mother. Therefore it would be iniquitous to convict the accused and send him to jail.

The Supreme Court has directed the constitution of a committee comprising a psychologist and social scientist to interact with the woman and her daughter to ascertain whether they are willing to live with the accused in view of the assurance given by the State that it is now willing to take care of the woman and the daughter.

My Opinion 

The woman and her daughter are now to make a decision that would require a fine balance between emotion and intelligence. 

The woman and the daughter may get a vibrant future if they accept the proposal of the State. Their life however would be ordinary if they decide to live with the accused. The profession of the accused has not been mentioned in the judgment, however, my instinct says that the accused is not a well-to-do man.

The High Court has rightly not convicted the accused person. It is true that the woman indulged in sexual intercourse with the accused when she was a minor and the accused was an adult. However, the fact remains that after attaining majority, once a minor girl, now a woman has decided to live with the accused and has accepted him as her husband. The strict rigour of law cannot be applied to relationships. Therefore it cannot be held that since the beginning was illegal all the subsequent acts shall also be consequently held as illegal.

The Supreme Court has not examined the issue from the perspective of the fact that the relationship which began with sexual intercourse culminated in a relationship of a husband and wife. The High Court noted that the woman was standing on one side of the court with a baby in her lap. The High Court asked the lady as to who she is and why she is in court. She could not give any proper answer, and hence the court appointed an advocate to inquire about the matter. 

After knowing the story of her plight, the High Court took up the matter and disposed of it. Hence the lady was waiting as to when the appeal of the accused will be taken up for hearing. Therefore it is clear the woman is in support of her husband, and I am sure that she was in the court to see whether her husband comes out of jail. In my understanding, the Court must have directed that all of them— the accused, her wife and their daughter shall be assisted by the State to come forward in life and enable them to live a happy married and parental life, perhaps, forever. 

It is true that the POSCO Act does not provide for the rehabilitation of a convict. The Supreme Court was however not powerless to exercise Article 142 for giving a direction to the State to foster their life.

The Supreme Court has given a choice to the woman where either she would be hanged as selfish if she chooses to accept the proposal of the State and leave her husband/accused and undoubtedly, the husband/accused will be sent to jail if she so accepts the proposal. If she does not accept the proposal, she will be branded as a non-intelligent woman who has not only sacrificed her life for her husband but has also put the life of her daughter at peril. 

The Supreme Court is yet to pronounce on the punishment that may be imposed on the accused since it said that it will opine on the quantum of punishment or if punishment needs to be given at all after perusing the report of the Committee constituted for ascertaining the will of the woman and the minor girl that whether they will live with the accused or will they accept the proposal of the State.

This non-pronouncement of the punishment clearly shows that the acceptance of the proposal by the women will put the accused behind bars.

My Opinion on the Advice of the Judge(s)

The author of the judgment of the Calcutta High Court was Justice Chitta Ranjan Dash who in his farewell speech said that he was a member of RSS and he was willing to rejoin the organization after his retirement from the office. There may be two opinions on the ideological catalogue of the RSS, however, everyone will be at one on the point that RSS is an organization which teaches an individual to live a disciplined life in the traditional sense of the term ‘discipline’.

It is true that the Courts are not to advise an individual as to how they are going to live and shape their life.  However one must remind oneself of the decision of the Supreme Court in the decriminalisation of adultery case where the present Chief Justice delved into the sexual autonomy of women and why section 497 of the old IPC makes a woman the property of a man, and therefore the section needs to be struck down to the extent it criminalizes adultery. 

In that background, the present CJI also delved into the subject of why a woman need not be branded as a bad lady who exercises her right of choice and indulges in extra-marital sexual intercourse. 

The language of the CJI was couched in a way that although does not promote a promiscuous life and denudes the concept of family, but does also upholds the right of a woman to make her own choices.

The bench of the High Court was therefore presided over by a judge who has gone through the drill of a disciplined life. Therefore the judge wanted to give out a message of discipline as regards the sexual life of teenagers and I trust that everyone must be at one that if a person regardless of sex builds up a disciplined sexual life, a major chunk of his or her problem will get a solution.

Therefore, it is requested that the judgment of the High Court should be seen from the above perspective.