New Delhi: Setting aside the Calcutta High Court’s October 2023 judgment advising adolescent girls to “control sexual urges”, the Supreme Court Tuesday urged all states and UTs to ensure that statutory provisions under the Juvenile Justice (Care and Protection of Children) Act, 2015, are extended to victims of offences registered under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The bench comprising Justices A.S. Oka and Ujjal Bhuyan called the high court’s observations “utterly irrelevant for deciding the controversy” and “shocking”. Commenting generally on court judgments, the bench asserted that “the judge has to decide a case and not preach.”
The high court had quashed the judgment passed by a trial court convicting an accused under Section 6 (aggravated penetrative sexual assault) of the POCSO Act, and Sections 363 (kidnapping), 366 (kidnapping, abducting or inducing woman to compel her to marry, etc.) and sections 376(2)(n) (committing rape repeatedly on the same woman) and 376(3) (raping woman under 16 years of age) of the Indian Penal Code (IPC).
The minor in this case was 14 at the time of the incident. Her mother lodged an FIR on 29 May 2018, alleging that she escaped from home on 20 May of that year without informing anybody. On inquiry, it was alleged that the accused, then 25, enticed the minor to leave her house, according to the Supreme Court verdict.
The mother’s repeated visits to the home of the accused demanding her daughter’s return were in vain. It was later found that the girl had a child with the accused.
The accused was arrested in December 2021 and a chargesheet in the case was filed in January 2022. He was then convicted by a trial court in September 2022, and was sentenced to undergo rigorous imprisonment for 20 years and pay a fine of Rs 10,000.
However, a division bench of the Calcutta High Court comprising Justices Partha Sarathi Sen and Chitta Ranjan Dash quashed the conviction and sentence of the accused in October last year. In doing so, the high court urged adolescent girls to restrain their sexual impulses and not succumb to “two minutes of pleasure”, while asking adolescent boys to “respect” young girls and women and their dignity and bodily autonomy.
The Supreme Court then took suo motu cognisance of the order later last year, with the petition titled, ‘In re: Right to privacy of adolescents’.
The court appointed senior advocates Madhavi Divan and Liz Mathew as amici curiae (friends of the court) in the case.
In its judgment, the apex court now made it clear that in this case, there was a “failure of the machinery under the JJ Act in the state to discharge its obligations to the victim”. Therefore, it asserted that “the state government must go out of its way to help the victim”. This was after the court took note of the “helpless position” of the victim in this case, noting that her parents completely abandoned her, from the year 2019.
It held that the accused in the case was guilty under sections 376(2)(n) and 376(3) of the IPC, along with Section 6 of the POCSO Act, but upheld his acquittal under sections 363 and 366 of the IPC.
‘State machinery failed victim’
The court opined that the state machinery “failed to act according to the law to take care of the victim” in this case, and that she had no option but to seek shelter with the accused.
It noted that Section 19(6) of the POCSO Act makes it the duty of the Special Juvenile Police Unit or local police to report to the Child Welfare Committee (CWC) and the special court, within 24 hours, once it has knowledge about the commission of an offence under POCSO Act.
The CWC and the court need to be informed about the need of the child for care and protection and steps taken in this regard.
The apex court now noted that if Section 19(6) is implemented and then the CWC strictly implements provisions of the Juvenile Justice Act, “no victim will face the situation which the victim in this case had to face”. However, it noted that at the grassroot level, Section 19(6) was not being implemented.
It, therefore, directed a copy of the judgment be forwarded to secretaries of the law department of each state and UT, and asserted that they must coordinate with other departments and ensure that benefits of statutory provisions under the JJ Act are extended to victims of offences registered under the POCSO Act.
The court directed the secretaries of law and/or justice departments of all states and UTs to convene meetings of the secretaries of all departments concerned and other senior officials to ensure that appropriate directions are issued in order to strictly implement the provisions of Section 19(6) of the POCSO Act and the relevant provisions of the JJ Act.
The states and UTs, the court asserted, shall assist the victims in getting benefits under the scheme formulated by the Ministry of Women and Child Development for care and support to POCSO victims, and the National Legal Services Authority (NALSA) Compensation Scheme for Women Victims and Survivors of Sexual Assault/Other Crimes-2018. The secretaries have to forward compliance reports to the secretary, Ministry of Women and Child Development, Government of India, within two months.
The secretary of the WCD ministry has to then compile the reports and submit an exhaustive report before the Supreme Court within three months.
Violation of Article 21 & role of state
The Supreme Court highlighted the fact that it is the responsibility of the state to take care of helpless victims of such heinous offences.
“Therefore, immediately after the knowledge of the commission of a heinous offence under the POCSO Act, the State, its agencies and instrumentalities must step in and render all possible aid to the victim children, which will enable them to lead a dignified life,” it observed, adding that failure to do so will amount to a violation of the fundamental rights guaranteed to the minors in question under Article 21.
It further noted that in our society, parents of victims of POCSO Act offences abandon the victims. In such a case, it asserted that it is the duty of the State to provide shelter, food, clothing, and educational opportunities to the victims as provided in law. Even children born to such a victim need to be taken care of in a similar manner by the State, it added.
As for the victim in this case, the court directed the West Bengal government to constitute a committee of three experts, including a clinical psychologist and a social scientist, within three weeks.
The state government then needs to provide the committee with details of all the benefits it is willing to extend to the victim.
The committee shall then meet the victim and inform her of the same, as well as about other schemes being offered by the central government. The committee’s duty is to help the victim to make an informed choice whether she wants to continue to remain in the company of the accused and his family or wants to avail of the benefits offered by the State Government.
The coordinator of the committee is to then submit a report on the committee’s interactions with the victims and its recommendations in a sealed cover, through the state government lawyer, by 18 October.
The petition has been listed on 21 October to consider the report submitted by the expert committee and for considering the sentencing of the accused.
SC on ‘older adolescents’ observation
Taking note of the provisions of POCSO Act, the court noted that in this case, there is no dispute about the fact that the accused committed penetrative sexual assault on the victim. It also opined that the offences under Section 376 (rape) of IPC were made out against the accused.
However, it noted that there was no evidence to prove that the accused took the victim out of the custody of her lawful guardian and that there is no evidence of him enticing the victim. It, therefore, concluded that the offences under Sections 363 and 366 were not made out.
The apex court then referred to the reasons recorded by the high court in its judgment.
For instance, the high court had lamented lack of recognition of consensual behavior of “older adolescents”. This did not sit well with the Supreme Court, which said it fails to understand the concept of older adolescents.
The Supreme Court called it “shocking” that the high court observed that while achieving ostensible objectives to protect all children below 18 years from sexual exploitation, the law’s unintended effect has been the deprivation of liberty of young people in consensual relationships.
The apex court felt that the high court had “surprisingly, carved out a non-existing category of romantic cases in the rape cases”.
The high court had also emphasized on the need of an amendment to decriminalise consensual sexual acts involving adolescents above sixteen years. However, the Supreme Court now asserted that “the judges ought to have avoided expressing their personal views even assuming that there was some justification for holding the views”.
It pointed out that under Section 375 of the IPC, penetrative intercourse with a woman under 18 years of age, with or without her consent, constitutes an offence of rape. Therefore, the apex court asserted that “whether such offence arises from a romantic relationship is irrelevant”.
(Edited by Amrtansh Arora)
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