Supreme Court: How can an act that is an offence punishable under the POSCO Act be described as "a romantic relationship"?

 REASONS RECORDED BY THE HIGH COURT FOR ACQUITTAL

16. Now, we come to the reasons recorded by the Division Bench. The Division Bench has invited a very peculiar concept of "non-exploitative sexual acts" while dealing with the offences punishable Under Section 376(2)(n) of the Indian Penal Code 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 "non- exploitative"? In paragraph 17, the High Court refers to "marital rape". In this case, there is no evidence of marriage. The Bench has also invented a non-existent category of "older adolescents" and lamented about the lack of recognition of the consensual behaviour of older adolescents. We fail to understand this concept of "older adolescents". Further, the Division Bench goes on to observe 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.

17. We must deal with some of the observations made by the High Court. 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. 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. In paragraph 28, the Court went further. It held that instead of protecting the adolescents from abuse, the law exposes them in factually consensual and non-exploitative relationships to the risk of criminal prosecution. It compromises the mandate of protecting the children. Therefore, the Court observes that an amendment is necessary to decriminalise consensual sexual acts involving adolescents above sixteen years. The High Court, while dealing with an appeal against the order of conviction, was not called upon to make the observations which we have referred to above. Perhaps these were the subjects on which only the experts could have debated at a different forum. The judges ought to have avoided expressing their personal views even assuming that there was some justification for holding the views. While the High Court observed this, it forgot that in the facts of the case, the Court 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.

19. The duty of the High Court was to ascertain on the evidence whether the offences Under Section 6 of the POCSO Act and Section 376 of the Indian Penal Code were made out. In view of "sixthly" in Section 375 of the Indian Penal Code, 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 POSCO Act be described as "a romantic relationship"? 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 Indian Penal Code, cannot be sustained.

 IN THE SUPREME COURT OF INDIA

Suo Motu Writ Petition (C) No. 3 of 2023 and Criminal Appeal No. 1451 of 2024

Decided On: 20.08.2024

In Re: Right to Privacy of Adolescents

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation:  MANU/SC/0904/2024.

Read full Judgment here: Click here.