New Delhi : The Supreme Court on Tuesday said “perversity is writ large on the face” of the Calcutta High Court judgment, which acquitted an accused in a sexual assault case and made "objectionable" observations advising adolescent girls to "control sexual urges". The apex court made it clear that a judge has to decide a case and not preach and a judgment of the court cannot contain the judge's personal opinions on various subjects.
A bench comprising justices Abhay S Oka and Ujjal Bhuyan said: “There are several statements and conclusions in the impugned judgment which, to say the least, are shocking. Perversity is writ large on the face of the judgment, which can be seen in several paragraphs of the impugned judgment”.
The bench noted that the high court laid emphasis on incorporating the aspects of reproductive health and hygiene into the school curriculum. “The observations are utterly irrelevant for deciding the controversy. To say the least, these observations are shocking, which will ex-facie invite a finding of perversity”, said Justice Oka, who authored the 50-page judgment on behalf of the bench.
The apex court emphasized that the ultimate object of writing a judgment is to ensure that the parties before the court know why the case is decided in their favour or against them and the court can always comment upon the conduct of the parties. “However, the findings regarding the conduct of the parties must be confined only to such conduct which has a bearing on the decision-making. A judgment of the court cannot contain the judge's personal opinions on various subjects. Similarly, advisory jurisdiction cannot be exercised by the Court by incorporating advice to the parties or advice in general. The Judge has to decide a case and not preach”, said Justice Oka.
Justice Oka said the judgment cannot contain irrelevant and unnecessary material and a judgment must be in simple language and should not be verbose, and stressed that “brevity is the hallmark of quality judgment. We must remember that judgment is neither a thesis nor a piece of literature”.
“However, we find that the impugned judgment contains personal opinion of the judges advice to the younger generation and advice to the legislature”, said Justice Oka.
The apex court said the division bench of the high court has invited a very peculiar concept of “non-exploitative sexual acts” while dealing with the offences punishable under Section 376(2)(n) of the IPC and Section 6 of the POCSO Act. “We fail to understand how a sexual act, which is a heinous offence, can be termed as non-exploitative. When a girl who is fourteen years old is subjected to such a horrific act, how can it be termed as “nonexploitative”?”, said Justice Oka.
Criticizing the HC’s reference to marital rape, Justice Oka said in this case, there is no evidence of marriage. The high court had observed that sexual behaviour in adolescents, particularly from the onset of puberty, is established as being a natural, normative and integral part of an adolescent’s development
The high court concluded that by equating consensual and non-exploitative sexual acts with rape and aggravated penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents. “The High Court was not called upon to discuss the merits and demerits of the existing laws. What is shocking is the observation made in paragraph 23 of the impugned judgment where 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 relationship”, said Justice Oka.
The apex court said the court, surprisingly, carved out a non-existing category of romantic cases in the rape cases. “While dealing with the offences under the POCSO Act, shockingly, the Court observed that the law undermines the identity of adolescent girls by casting them as victims, thereby rendering them voiceless. The Court says that, on the other hand, adult boys are discriminately treated as children in conflict with the law. Thereafter, in paragraph 25, the Court proceeded to criticise the POCSO Act by observing that it clubs all persons below eighteen years without considering their developing sexuality, evolving capacity and the impact of such criminalisation on their best interests”, noted the apex court.
The apex court said the high court forgot that it was not dealing with the sexual acts involving adolescents above sixteen years, as the age of the victim was fourteen years and the accused was twenty-five years at the relevant time.
In a paragraph, the high court referred to the generation of androgenic steroids and secretion from the pituitary gland and thereafter, the court laid down the duties and obligations of every female and adolescent in a paragraph in the judgment.
“No reasons are required to be recorded for holding that incorporation of the same in the judgment is entirely irrelevant and unwarranted”, said Justice Oka.
Justice Oka said in view of “sixthly” in Section 375 of the IPC, penetrative intercourse with a woman under eighteen years of age, with or without her consent, constitutes an offence of rape. “Therefore, whether such offence arises from a romantic relationship is irrelevant. How can an act that is an offence punishable under the POCSO Act be described as 'a romantic relationship'?”, he added.
The high court went to the extent of observing that the case of criminalisation of a romantic relationship between two adolescents of opposite sex should be best left to the wisdom of the judiciary. “The courts must follow and implement the law. The courts cannot commit violence against the law. The findings and observations in the impugned judgment, except the finding on the applicability of Sections 363 and 366 of the IPC, cannot be sustained”, said Justice Oka, setting aside the high court judgment.
Justice Oka noted that perhaps the consideration of sympathy and the so-called welfare of the victim and her child prevailed on the judges' of the high court. “The Court was influenced by the fact that the victim’s parents did not support her, and therefore, by sending the accused to jail, she and her child would be miserable as the accused and his family were taking care of them”, he said.
In December last year, the apex court had criticised the verdict and termed as "highly objectionable and completely unwarranted" some observations made by the high court.
The top court had taken cognisance of some of the observations made by a division bench of the high court and initiated a writ petition on its own. The West Bengal government had also challenged the October 18, 2023 verdict of the high court in which these "objectionable observations" were made.
The high court had observed that female adolescents should "control sexual 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".
The high court had made the observations while hearing an appeal by a man who was awarded a 20-year sentence for sexual assault. The high court had acquitted the man.
The Supreme Court restored the man’s conviction under Section 6 of the POCSO Act, along with Sections 376(3) and 376(2)(n) of the IPC.
