“Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid: make decisions,” wrote British lawyer David Pannick. At times, judges who try cases under the Protection of Children from Sexual Offences (Pocso) Act involving consensual sex between adolescents find it difficult to choose between the law and reality. Recently, in a case titled In re: Right to privacy of adolescents, the Supreme Court was confronted with such a dilemma.
The case was from West Bengal. A 14-year-old girl had left her parental home to live with a 26-year-old man. They got married and a child was born. The man was found guilty of offences under the Pocso Act and the erstwhile Indian Penal Code. The trial court sentenced him to long-term imprisonment. The high court set aside the judgement in view of the relation between the victim and the accused, taking note of the subsequent turn of events. The Supreme Court initially reversed the high court’s judgement. But instead of punishing the man, thought it fit to make a deeper enquiry into the case’s realities—it sought a report from an expert committee. The committee’s final report was unconventional.
Relying on the final report about the plight of the victim, the court said that though “initially, passion and intimacy may have taken centre-stage”, later “without any coercion from her husband, the victim is deeply committed to him”. The court noted that the victim’s struggle has been for rescuing her husband from the impending punishment. The court found that “she is ably looking after her responsibilities as a wife and mother”. It also noted that the victim had to find lakhs of rupees for saving her husband from the clutches of law. She was bringing up the child while defending her husband when the state of West Bengal had adopted an insensitive position.
The final report of the expert, as extracted in the judgement, reads: “A heinous crime causes trauma in the psyche of the victim. In this case, the law saw it as a crime, the victim did not. Hence, the legal crime did not cause any trauma on this particular victim. It was the consequences thereafter—the police personnel, the legal system, the battle to save her husband and do the best for her daughter while having a financial burden which is taking its toll on her. A young woman who refuses to be called a “victim”, fighting for her husband needs all the support that can be made available. It would be in the best interest of the child if the family structure can be restored.”
The court, even after observing that in law the accused had to be sent to jail, in view of the human predicament, thought it fit to ensure that the husband not be separated from the wife; though the accused was convicted, he will not undergo any further punishment. The court also asked West Bengal to “act as the true guardian of the victim and her child”—to take care of their well-being including their education. Thus, the court, in its introspective jurisdiction, corrected its own act of mechanically reversing the findings of the Calcutta High Court.
Criminalisation of adolescent sexuality is a delicate subject. According to Indian law, a consensual sexual act on a minor is punishable because the law does not provide for “close in age” exceptions. A 2022 paper by Swagata Raha and Shruthi Ramakrishnan says, “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 Pocso Act renders adolescents vulnerable to criminal prosecution for normative sexual behaviour.”
This is, precisely, the challenge before lawmakers. Legislation on human relations is not an easy task. The attempt should be to minimise policing power of the state in intimate personal relations. The Supreme Court explained this principle in the Joseph Shine (2018) case that decriminalised adultery. Given the nature of personal and family relations in India, a mechanical adoption of Western laws could create problems.
The Pocso Act, to some extent, illustrates this point. According to Section 19(1) of the Act, a person who apprehends or knows about the commission of an offence under the Act is bound to inform the competent authority. Failure to do so is also an offence. This adds to the problem’s complexity. Very often in India, adolescent relations may not be endorsed by the families and, therefore, the tendency to use the law to take ‘vengeance’ is rampant. Again, when youngsters try to get away from their familial ambience because of parental disapproval of their relation, there could be invocation of the law to punish the ‘probable offender’ at the instance of the hostile family.
The law also disregards the organic development of human personality during adolescence, which often includes intimate relations between a girl and a boy. In a 2023 decision, the Delhi High Court, while granting bail to an accused, said that the object of the statute is not to criminalise consensual romantic relations between young people. The problem, however, is that this is what the law precisely does. The suggestion of the Madras High Court in the Sabari (2019) case that the definition of child in Section 2(d) of the statute should be altered as a person below the age of 16 years, instead of 18, is sensible and realistic. In this case, the court underlined the need to “distinguish the cases of teenage relationships after 16 years from the cases of sexual assault on children below 16 years”.
Pocso, a gender-neutral law enacted in 2012, showed a radical shift from the provisions in conventional laws like the erstwhile Indian Penal Code, which focused on sexual crimes on girls only. Yet, the new law has turned problematic in the context of the consensual relations among the young. As Justice Oliver Wendell Holmes Jr famously said, “The life of the law has not been logic; it has been experience.” The well-considered judgement of the Supreme Court, authored by Justice Abhay S Oka, shows that the case is not yet fully disposed of. The court invoked Article 142 of the Constitution to issue directives to rescue the family.
It is time for the country to think about empowering high courts with similar enabling provisions under the Pocso Act, along with several other reforms. This would call for positive changes in the law, or suitable judicial legislation.
(Views are personal)
(kaleeswaramraj@gmail.com)
Kaleeswaram Raj | Lawyer, Supreme Court of India