Supreme Court raps Calcutta HC for saying 'adolescent girls should control sexual urges'

New Delhi: Pulling up judges for expressing personal views and preaching, the Supreme Court on Tuesday set aside a Calcutta High Court's judgment acquitting a man who had sex with a minor girl and also junked the High Court's controversial remarks that "adolescent girls should control their sexual urges".

A bench comprising Justices Abhay S Oka and Ujjal Bhuyan set aside the High Court's remarks which it made last year while overturning the conviction of a 25-year-old man under the Protection of Children from Sexual Offences Act (POCSO Act) 2012 and acquitting a 20-year man who engaged in sexual activity with a minor girl.

One of the controversial remarks of the Calcutta High Court bench of Justices Chitta Ranjan Dash and Partha Sarathi Sen High Court that upset the top court was: It is the duty of adolescent girls to “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.”

Taking suo moto cognizance of the case titled "In Re: Right to Privacy of Adolescents", the Supreme Court said the observations were not only "highly objectionable" but also "completely unwarranted," as they violated the rights of adolescents under Article 21 of the Constitution.

The Supreme Court expressed concern over the High Court's deviation from its remit to decide solely on the merits of the appeal, criticizing the judges for expressing personal views and preaching.

The apex court restored the conviction of the accused in the case, after Senior Advocate Madhavi Divan, appointed as amicus curiae, said that judges must base their decisions on constitutional morality rather than personal biases.

Justice Oka wondered how the High Court used its power under Section 482 of the Code of Criminal Procedure, 1973, - that gives High Courts the power to prevent the abuse of the legal process and to ensure justice – to overturn the conviction in the case on the grounds that POCSO should be amended to recognize adolescent sexuality.

The Supreme Court bench also set aside the controversial remarks on adolescent sexuality made by the High Court in the judgment delivered on October 18, 2023.

The HC bench had observed 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 urges are not at all normal and normative.”

In an observation on the language used by the High Court in its judgment, Justice Oka said that guidelines have been issued regarding how to write judgments.

Justice Oka also said that directions have been issued to the States to implement provisions of Section 19 (6) of POCSO Act along with Sections 30 to 43 of the Juvenile Justice Act that deal with issues related to a child's need for care and protection and setting up of shelter homes.

Justice Oka further said that a committee of experts have been constituted to help the victim in the case to make an informed choice.

Amicus curiae Madhavi Divan argued that the High Court's observations lacked any empirical or social reasoning and were disconnected from reality.

The State of West Bengal also filed a special leave petition challenging the High Court's judgment on its merits.

Appearing for the State, Senior Advocate Huzefa Ahmadi, argued that the High Court had misused its powers under Section 482 of the CrPC and Article 226 of the Constitution.

He stressed that criminal convictions must be strictly examined based on statutory laws.

The Supreme Court also heard the issue of adolescent sexuality and the need for judicial discretion in cases involving consensual relationships between minors.

The Law Commission's 283rd report on the age of consent under the POCSO Act was cited, which highlighted concerns about the blanket criminalization of adolescent sexual activity and recommended granting courts the discretion to impose lesser sentences in certain cases.

The Calcutta High Court bench in its judgment also laid down a set of duties to be followed by adolescent boys and girls, saying It is the duty/obligation of every female adolescent to Protect her right to integrity of her body; Protect her dignity and self-worth; Thrive for overall development of her self-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 and Protect her right to autonomy of her body and her privacy.

The HC further said that it was 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 “right to autonomy of her body.”

The HC also emphasized the absence of provisions in the POCSO Act to address consensual, non-exploitative relationships between adolescents aged 16-18.