Victim Shaming Approach Of Courts Will Deter Women From Reporting Sexual Offences : Amicus Curiae Tells Supreme Court

The Supreme Court on Thursday (May 2) heard the suo motu case taken by it over a judgment of the Calcutta High Court in which certain remarks were made regarding the sexual conduct of adolescents, particularly teenage girls.

The suo motu case titled "In Re : Right to Privacy of Adolescents" was listed before a bench comprising Justices Abhay S Oka and Ujjal Bhuyan.

While overturning the conviction of a young man under the Protection of Children from Sexual Offences Act (POCSO Act) 2012, the High Court had cautioned 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.

The Supreme Court had earlier expressed disapproval of the broad comments made by the High Court which are unconnected with the merits of the appeal. It had appointed Senior Advocate Madhavi Divan as an amicus curiae to assist in the suo motu matter.

During today's hearing, the Court expressed displeasure at the general trend of various Courts to indulge in "victim-shaming" and "stereotyping" victims of sexual assault. The bench opined that the rights of an individual should not be contingent upon the exercise of duties , especially in context of socially defined norms for women.  

Taking note of the perceived notion of 'self-worth' presently being misunderstood in the social and judicial context, Justice Bhuyan observed 

"Another problematic area in the line of reasoning that the court has adopted is that they have made the exercise of my right contingent upon my performing duty, if I don't perform my duty, I cannot exercise my rights." 

Justice Bhuyyan highlighted that an increasingly 'duty-centric' approach taken by courts in their logical reasoning comes in way of effective and guilt-free realisation of an individual's rights. These observations were made while referring to judicial pronouncements where rape survivors were often blamed for their conduct or clothing. 

The amicus added that it is this victim shaming and duty-centric mindset which weighs down women to come ahead and report any sexual crime that they have been a victim of. 

" This is also the reason why women don't report. They are so ashamed that they will be judged whether by their families, administration, court...there will be value judgments on their morality ....there is victim shaming, if you wear a skirt lower beyond a certain length, that will be expected that you will invite troubles for yourself." 

Ms Divan also submitted that the High Court made the objectionable comments without any social reasoning and the backing by empirical data. It was the contention that judges, without being well versed of social issues like sexual urges amongst adolescents,shouldn't assume the role of sociologists when deciding cases. 

"The reasoning is based on complete irrationality. One it is not based on facts, complete frolic....it is completely disconnected with reality and of course the basis of all that - there is no scientific no academic findings. Judges are not sociologists, they simply have to decide on the basis of the facts." 

She further stressed that a judicial mind has to work within the contours of 'constitutional morality', the values which the constitution imbibes and not let personal biases or subjectivity of the judge sway the decision-making process. 

" It's not unnatural, you cannot be completely separated from your own views, but at the same time those views must conform to the constitutional morality."   

In terms of the facts, the bench was informed that the minor had begotten a child from her relation with the accused partner at the age of 17 years and wished to reside with him since she has been ostracized and disowned by her parents and community at large. 

Ms Divan raised concerns about the future of the minor and her child considering that without any social support and the expenses of the child, the minor may be compelled to think that an abusive partner may be her only source of survival. 

Justice Oka weighed in to note that just as the Court in the Muzaffarnagar student slapping case asked the State of UP to take responsibility for the child and provide him Govt. Schooling, similarly in the present scenario, the State of West Bengal should be asked to step in and aid the minor for a secured future.

Senior Advocate Mr Hufeza Ahmadi, appearing for the State of West Bengal, objected to the High Court issuing such directions and reasonings for acquittal under Article 226 and S. 482 CrPC (inherent powers to secure the ends of justice) while dealing with a stautory appeal against conviction. He flagged caution against the possibility of misusing powers under Article 226 and S. 482 to overlook statutory provisions and the settle principle of going by the book when it comes to examining criminal convictions. 

" These are statutory powers and appeals, they have to be dealt with strictly in terms of the statutory appeals. Now here there has been no petition filed either under 226 or under 482. The Court was dealing with the statute, otherwise, my lords we will have a practice of entertaining writs against convictions, a practice of entertaining 482 petitions against convictions"  

Victim Shall Have An 'Informed View' Of The Crime; Stereotyping Womens' Role Against The Concept Of Autonomy - Mr Ahmadi Submits 

Referring to the circumstances under which the High Court acquitted the accused, Mr Ahmadi stressed that the High Court's extreme reliance on the views and statement of the victim were not enough as she was not legally informed of the nature of the act, consequences and even the possibilities of having a better future independent of the accused. He urged the Court that even while the Top Court in the present scenario may exercise powers to do complete justice, the 'informed views' of the victim should be taken into consideration.

"The views of the victim, have to be an informed view. Because today she is possibly held in by certain type of circumstances ...her view may not be completely informed, not completely free, she realizes that I have to go back to a particular place. In order to ensure that there is a view expressed out of her own free will, some amount of protection by the state for a certain period may be given....thereafter if she comes back with the same view, then my lords can decide how the relief under Article 142 be given." 

It may recalled that the High Court noted from the victim that she had voluntarily proceeded to the appellant's home to assume the role of his wife, and subsequently given birth to a child. Amicus Curiae for the victim, who was 17 years old,  prayed for the victim to be saved from destitution by acquitting her husband. 

Mr Ahamadi further emphasized how judicial pronouncements such as the present one have a dangerous effect of making women dependent rather than encouraging their autonomy. 

" This kind of stereotyping of a role of a lady in the society by the High Courts and then actually harping on autonomy, you are effectively making her self-deprive, exactly the opposite of autonomy. So therefore what you are doing is firstly creating a particular atmosphere which is artificially created, she is supposedly exercising her autonomy which is not but actually making her dependent. By making her dependent, then making her a victim of circumstances , that's actually not autonomy."   

How Can POCSO Be Ignored Just Because It's Not Understood At Grassroot Level? Bench Objects To Submissions By The Accused 

The counsel for the accused submitted that a situation like the present one where younger girls in their teens often end up in romantic affairs with older guys was a commonly understood norm in rural areas at the grassroots of a state like West Bengal. He gave the example of how his house help who is aged 36 years is already a grandmother.

Justice Oka posited that a legislation like POCSO which came into effect in 2012 aimed at reforming society in terms of children's well -being. A welfare legislation cannot be overlooked just because the rural and remote areas of the country have refused to acknowledge the presence of such a law. 

"Look at the object of POCSO, the object was to bring a change in the society. So now today can we hear an argument that POCSO maybe 20 years old but at grass root level POCSO is meaningless? In the sense large population is acting contrary to POCSO and therefore we have to ignore it?"

The bench further drew a distinction between the example of the house help of the counsel and the present case. It was highlighted that one cannot ignore the provisions of POCSO and the possibility of criminality of the accused when an FIR is filed and the crime of reported. Incidents of sexual assault which are officially reported cannot be then excused by such an argument that people at the grassroots have accepted minor-adult affair as the norm. 

"Now here is a complaint where an FIR is registered by the mother ..utlimately can we go to that extreme and say that POCSO should not be taken seriously because who is following it at the grassroot level?"  

Social Scientists & Workers Can Help Victim Arrive At An Informed Decision : Bench & Bar Agree  

To ensure that the victim takes a well-informed decision for herself and the future of her child, the bench was of the view to allow her a period of introspection with the help of state support. While Ms Divan advised that the victim can be given a safe shelter and financial support from the state for a temporary period, the bench added that she needed to interact with social counsellors or workers in the relevant field to be able to ascertain her true self. 

" Maybe when she stays away, there is some interaction with some experts for example TISS (Tata Institute of Social Sciences), social scientists etc who will be able to assist us to take a correct decision.," opined Justice Oka

Agreeing with the same, Ms Divan said that such an aid would help the victim give a holistic picture and help her understand both the sides of the coin- in the event that she chooses to live separately by herself or go back to her partner. 

The court then asked the counsels to come up with a common solution as to where and how will the state provide such aid and mutually chalk out the modalities of the same.

The hearing will now take place next Thursday. 

The Supreme Court in December expressed disapproval of certain observations made by the Calcutta High Court regarding the sexual behavior of adolescents.

Taking objection to these remarks, a Suo motu case, titled "In Re: Right to Privacy of Adolescent", was initiated by the Supreme Court. Issuing notice to the State of West Bengal, the accused and the victim girl, the Court observed that these remarks were "objectionable" and violated the rights of adolescents under Article 21 of the Constitution. 

"After having carefully perused the judgment, we find that many parts thereof, including para 30.3, are highly objectionable and completely unwarranted. The said observations are completely in violation of rights of adolescents under Article 21 of the Constitution." 

Background 

The Calcutta High Court bench of Justices Chitta Ranjan Dash & Partha Sarathi Sen while acquitting an appellant accused of sexual assault of a minor under POCSO Act, laid down a set of duties to be followed by adolescent boys and girls : 

It is the duty/obligation of every female adolescent to:

(i) Protect her right to integrity of her body.

(ii) Protect her dignity and self-worth.

(iii) Thrive for overall development of her self-transcending gender barriers.

(iv) Control sexual urge/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 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 & privacy, and right to autonomy of her body. 

The bench further noted that sex in adolescents is normal but sexual urge or arousal of such urge is dependent on some action by the individual, may be a man or woman. Therefore, sexual urge is not at all normal and normative.  

Case Details : IN RE: RIGHT TO PRIVACY OF ADOLESCENTS SMW(C) No. 000003 - / 2023