By Sanjay Raman Sinha
A controversial order of the Calcutta High Court has come under fire from the Supreme Court. The matter relates to a POCSO case (Probhat Purkait @ Provat vs The State Of West Bengal) where the High Court on October 18, 2023, not only questioned the criminality inherent in a sexual relationship with a minor, but also sermonised the hapless victim on morality.
The apex court took umbrage to both, and in a suo motu hearing, called the order “shocking” and delivered a scathing verdict on the High Court order (Re: Right to Privacy of Adolescent).
In the case, the High Court had acquitted a person previously found guilty of rape and kidnapping under the Protection of Children from Sexual Offences (POCSO) Act and the Indian Penal Code. The accused was convicted by a trial court in the case of kidnapping and sexual assault of a 14-year-old girl. He was convicted under IPC Section 363 (punishment for kidnapping) and Section 366 (kidnapping, abducting or inducing a woman to compel her marriage, etc), as well as Section 6 (sexual assault) of the POCSO Act. The case was lodged by the victim’s mother.
The girl had testified that she had left her home and stayed with the accused on her own free will. She later bore a child due to the alleged wedlock. The accused was convicted by the trial court, but when he challenged the order in the High Court, the trial court order was annulled and he was granted bail.
The High Court had then stated: “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 looser when she gives in to enjoy the sexual pleasure of hardly two minutes. Protect her right to autonomy of her body and her privacy.”
The High Court also questioned POCSO’s legal logic by stating: “The lack of recognition of consensual sexual behaviour of older adolescents has resulted in their automatic criminalisation, as well as a conflation of consensual acts with non-consensual acts. While all children and adolescents are entitled to protection from sexual exploitation and violence, the approach adopted under the POCSO Act renders adolescents vulnerable to criminal prosecutions for normative sexual behaviour.”
The High Court went on to say 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 penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents”.
The apex court did not take the preaching of the High Court lightly. It severely reprimanded the High Court bench for suggesting decriminalisation of consensual sex. While setting aside the impugned judgment, the division bench of Justice Abhay S Oka and Justice Ujjal Bhuyan said: “We fail to understand how a sexual act, which is heinous offence, can be termed as non-exploitative.” It further held that “what is shocking is the High Court observation that the ‘law’s (POCSO) unintended effect has been the deprivation of liberty of young people in consensual relationship”. The High Court held that the POCSO Act should be amended by the legislature to exclude consensual relationships from its jural domain.
The High Court order has upturned many judicial canons. First, it has given morality lessons to the victim of adolescent sexual exploitation. Secondly, it has indulged in victim shaming, and thirdly, it has supported compounding in a POCSO issue and made a case for non-exploitative consensual sexual relationship between a minor girl and an older adolescent. The Supreme Court sternly said: “The Courts must follow and implement the law. The courts cannot commit violence against the law.”
The Calcutta High Court order is not the first one which has ruffled the feathers of the higher judiciary. Many such instances abound. In Mahmood Farooqui vs State (Govt of NCT of Delhi) of March 1, 2017, the Delhi High Court acquitted Mahmood Farooqui, a Bollywood filmmaker, of rape charges. The Court observed that a “feeble no” could mean “yes”, suggesting that the victim’s lack of resistance might indicate consent. This ruling led to outrage. The victim was put in an unfair position and the complexities of sexual assault were overlooked. The Court’s interpretation of a feeble hesitation as an “assumed consent” revealed a patriarchal attitude and men’s entitlement to women’s sexuality.
In the Hadiya case in 2018, the Kerala High Court remarked that a girl aged 24 years is weak and vulnerable. She is susceptible to be exploited in many ways and her marriage is the most important decision of her life, which must be taken after discussion with her parents.
In May 2022, the Delhi High Court delivered a divided verdict on criminalising marital rape. Justice Rajiv Shakdher struck down the existing law as unconstitutional, stating that the right to withdraw consent forms the core of women’s right to life and liberty. Justice C Hari Shanker rejected the plea to criminalise marital rape, noting that it is in the legislature’s domain of power to effect such changes. The judge who ruled against striking down of the marital rape exception held: “If the wife refuses and the husband, nonetheless, has sex with her, howsoever one may disapprove, it can’t be equated with the act of ravishing by a stranger.”
In 2020, a Karnataka High Court judge while granting anticipatory bail to the accused commented that it is “unbecoming of Indian women” to go to sleep after being raped.
In January 19, 2021, the Nagpur Bench of Bombay High Court gave the controversial “skin-to-skin” contact ruling. A single bench of Justice Pushpa V Ganediwala absolved the accused of charges under Section 7 and 8 of the POCSO Act. It held that sexual assault was not made because there was no “skin-to-skin” contact.
Sexual assault is defined in Section 7 of the POCSO as any non-penetrative sexual contact with the victim. The order was challenged in the Supreme Court wherein a bench of Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi said: “The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the ‘sexual intent’, and not the ‘skin to skin’ contact with the child.” This ruling was criticised for a literal interpretation of sexual assault and for potentially allowing perpetrators to escape punishment on technical grounds. The Supreme Court later overturned this judgment, emphasising that the intent of the law is to protect children from all forms of sexual exploitation.
In M.I. Shahdad vs Mohd. Abdullah Mir case, the Jammu and Kashmir High Court held that the serving of the summons only to a male adult family member is not discriminatory. The reason given was that the role of females in Indian society is that of housewives, and that at the time of law formulation, most of them were illiterate and some were parda nashin (avoided public gaze).
In 2012, while hearing a divorce petition, a division bench of Bombay High Court, comprising Justices PB Majmudar and Anoop Mohta, held that “women must be like Goddess Sita”, i.e., a woman must follow her husband wherever he goes.
Very recently, the Supreme Court had criticised the Delhi High Court order which rejected BRS leader K Kavitha’s bail plea on July 1. One of the grounds for denial of bail cited by Justice Swarana Kanta Sharma was that Kavitha was a “well-educated” woman who could not be considered “vulnerable”, so the exception would not apply to her. Another trial court order by Judge Kaveri Baweja had denied bail to Kavitha using the same logic.
Verdicts apart, judges have created controversies by their comments as well. In 2017, just before his retirement, Justice Mahesh Chandra Sharma, a Rajasthan High Court judge, held that the peacock is a lifelong brahmachari (celibate). It never has sex with the peahen. In 2021, Justice Shekhar Kumar Yadav of the Allahabad High Court famously said that scientists believe that the cow is the only animal that inhales and exhales oxygen.
Judges are a part of society and inherent social biases get reflected in their comments and verdicts. The need of the hour is gender sensitisation of judges at all rungs.
In June 2024, Chief Justice DY Chandrachud had reconstituted the Gender Sensitisation and Internal Complaints Committee. The 12-member Committee was headed by Justice Hima Kohli. She also headed the Committee in 2022 and 2023. In the Committee’s annual report for 2023, Justice Kohli had said: “Gender sensitisation is the cornerstone of a fair and just society. It serves as a vital tool in dismantling inherent biases and fostering an environment where everyone, regardless of gender, can live and work with dignity and respect.”
Though the effort to retrain the judges on gender sensitisation has been on for some time, the gains are not evident. Various verdicts, observations and comments have betrayed their deep seated patriarchal mindset and show up in their perception of female propriety in matters of sexual behaviour and consent.
Regressive verdicts have the potential to undermine the standing of the judiciary and can lead to the miscarriage of justice. Though under the watchful eye of the apex court, jural wrongs have been corrected, a constant refurbishing of attitudes as well as legal training is needed to inculcate a progressive outlook in the legal fraternity. A good start can be made at the legal curriculum level in law colleges.
Judges’ Faux Pas
- Justice K Ramaswamy (1996)
- Case: Githa Hariharan vs Reserve Bank of India
The Supreme Court stated that “a woman’s primary role is to be a wife and mother”. However, the ruling also acknowledged the mother’s right to be recognised as the natural guardian of her child, challenging conventional interpretation.
- Justice Arun Kumar (2003)
- Case: Ajay Kumar Gupta vs State of Bihar
The Patna High Court, during the course of hearing a case of domestic violence, stated: “A wife should be able to adapt to the husband’s family.”
- Justice SN Dhingra (2009)
- Case: Arnesh Kumar vs State of Bihar
Justice Dhingra of the Delhi High Court observed that “laws against dowry harassment were being misused by women as weapons”.
- Justice S Muralidhar (2010)
- Case: Delhi domestic violence case
Justice Muralidhar of the Delhi High Court suggested that a “woman should try to resolve her issues with her husband”.
- Justice CK Prasad (2010)
- Case: Bhaskar Lal Sharma vs Monica
The Supreme Court bench remarked that “women use laws like 498A to harass their husbands”.
- Justice Markandey Katju (2013)
- Case: Sanjay Dutt’s bail plea
While deliberating on the public perception of women, Justice Katju said that “women’s equality is a western concept”.