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Synopsis

The Supreme Court yesterday referred to a Calcutta High Court's order reminding female adolescents of their duty to protect their right to integrity of their body as "highly objectionable and completely unwarranted".

These observations are prima facie completely in violation of the rights of the adolescents guaranteed under Article 21 of the Constitution, the bench has said.

Notably, the top court took up the matter suo motu as 'In Re: Right to Privacy of Adolescent', wherein a bench of Justices Abhay S Oka and Pankaj Mithal said, "Prima facie, we are of the view that while writing a judgment in such appeal, the Judges are not expected to express their personal views. They are not expected to preach."

The bench pointed out the issue before the High Court was about the legality and validity of the judgment and order of September 19th/20th September, 2022, by which the appellant before it was convicted for the offences punishable under Sections 363 and 366 of the Indian Penal Code, 1860 as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). 

It said as per the order of the Chief Justice of India, suo motu writ petition under Article 32 of the Constitution of India had been initiated "mainly due to sweeping observations/findings recorded by the Division Bench of the High Court of Calcutta in the judgment of October 18, 2023". 

The bench reproduced the observations made in paragraph 30.3 wherein the High Court had said, 

"30.3. 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 herself 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."

"In the appeal against conviction, the High Court was called upon to adjudicate only on the merits of the appeal and nothing else. But we find that the High Court has discussed so many issues which were irrelevant," the bench added.

Issuing notice to the appellant and the victim girl, court has scheduled the matter for hearing on January 4, 2024.

It is to be further ascertained whether the West Bengal government has preferred any appeal against the said judgment or it intends to do so. Senior Advocate Madhavi Divan has been appointed as Amicus Curiae to assist, along with Advocate Liz Mathew.

It is to be noted the High Court's division bench had set aside the conviction of an accused man after noting that he had married the minor girl and became the father of a girl child, noting "this was a case of non exploitative consensual sexual relationship between two consenting adolescents though consent in view of age of the victim is immaterial".

High Court took into consideration the ground reality, subsequent development of birth of a child, peculiarity of facts and especially the economic conditions of the appellant and suffering of the victim since the date of arrest of her husband who (victim) is managing the family of an ailing mother-in-law and a small child without any support by her parents.

"We are constrained to take a humane view of the matter to do complete justice. We, therefore, invoke our inherent jurisdiction under Section 482 CrPC coupled with our plenary power under Article 226 of the Constitution of India and set aside the conviction of the appellant under Section 6 of the POCSO Act, Sections 376(3) and 376(2)(n) IPC," the High Court had said in its impugned judgment.

Case Title: In Re: Right to Privacy of Adolescent