'Writing Such Judgments Absolutely Wrong': Supreme Court Questions Calcutta HC Verdict Advising Adolescent Girls To Control Sexual Urges

The Supreme Court on Thursday (January 4) criticised a Calcutta High Court judgment which made news in December last year for cautioning girls in their adolescence to 'control their sexual urges' to prevent being deemed a 'loser' in the eyes of society “when she gives in to enjoy the sexual pleasure of hardly two minutes”. Not only did the top court find the observations 'problematic', but also questioned the legal principles invoked in the ruling. 

While deciding an appeal in a sexual assault case involving young adults, the high court had issued a set of advisories to teenagers, which included these observations that triggered an outrage and led to the Supreme Court taking suo motu cognisance in a case titled 'In Re: Right to Privacy of Adolescent' on the directions of the Chief Justice of India. A bench of Justices Abhay S Oka and Ujjal Bhuyan is hearing the suo motu case against this controversial judgment.

On the last occasion, while issuing notice to the State of West Bengal, the accused and the victim, the top court observed that these remarks were 'highly objectionable' and 'completely unwarranted', besides being in violation of the rights of adolescents under Article 21 of the Constitution. "In an appeal against conviction, the high court was called upon to decide only the merits of the appeal and nothing else. Prima facie, we are of the view that, in such a case, the judges are not expected to either express their personal views or preach," the bench noted in its order.

In another notable development, Senior Advocate Madhavi Divan was appointed as an amicus curiae to assist the court, with Advocate Liz Mathew assisting her. Further, the State was asked to inform the bench of its intention to file an appeal against the judgment. Justice Oka orally remarked that even the merits of the reversal of the conviction seemed doubtful, although the issue was not within the scope of the suo motu case.

Today, the court was informed by Senior Advocate Huzefa Ahmadi, appearing on behalf of the State of West Bengal, that an appeal has been filed. "The State has filed an appeal which was listed today before another bench of this court. Unfortunately, that bench did not sit."

Pointing out that the West Bengal government's special leave petition would have to be heard along with this suo motu petition, Justice Oka said -

"It's not only about these observations, but the findings of the court. Writing such judgments is absolutely wrong. What kind of principles the judges have invoked! In case of settlement, there is a series of judgment on that. But here, the court has said that the POCSO section should be amended and as the section is not amended, they will exercise power under Section 482."

During the hearing, Ahmadi told the bench, "Apart from the paragraph which Your Lordships have reproduced in the order of this court, see another paragraph..."

In response, Justice Oka exclaimed, "Every paragraph is problematic. We have marked all the paragraphs."

"It's a huge problem," Ahmadi replied, "Therefore, the State is also in appeal and we are on both aspects."

Divan, the amicus curiae, also argued that the high court's observation was wrong insofar as the question of sexual activity between adolescents did not arise at all. "The man was not an adolescent at the time."

Ahmadi added, "He was 25 and she was only 14. This is the mandate of POCSO and that is the legislative intent. In some cases it may have harsh results, but this is the legislative will. And also the recommendation is that we should leave it to the court, which is strange."

Concurring, Justice Oka said, "It is very strange. When it is in the teeth of the statute, how can you leave it to the court? Next Friday, we'll take it."

After the hearing, the bench pronounced, "It is pointed out by the senior counsel appearing for the state government that it has challenged the judgment in respect of which these suo motu proceedings have been initiated. The said special leave petition will have to be heard along with present suo motu writ petition. Registry to list said SLP along with the suo motu writ petition next Friday, after taking the approval of the chief justice. List on next Friday."

"We will issue notice in the SLP and then fix a date for the hearing. Meanwhile, you can get yourself ready," Justice Oka told the counsel before adjourning the hearing. 

Background

The controversy has erupted over certain observations made by a Calcutta High Court bench while overturning the conviction of a 25-year-old man accused of having sex with a minor. These observations have been excerpted below -