APEX COURT SCHOOLED CALCUTTA HC ON WRITING ‘RAPE’ JUDGMENTS

INDIAN COURTS OFTEN GET AWAY WITH DELIVERING HALF-BAKED ORDERS

The Supreme Court said the nation “cannot wait” for another rape for changes on ground. The “cannot wait” is confusing for the Average Joe. Does it convey an eagerness for another case of rape to land before a court? What about the judgment of the Supreme Court in which it objected to a decision of the Calcutta High Court, cautioning it to mind the language when writing judgments? Then, the Supreme Court had taken exception to the High Court asking “adolescent girls to control their sexual urges” to prevent rape.

The top court set aside the High Court’s decision to acquit the rapist. People across countries will call the High Court’s free-wheeling observation as “victim shaming”. The Supreme Court stopped with “objectionable”. After all, what does adolescent girls’ “sexual urges” got to do with rape, did the victim/rape survivor convey to the potential rapist her sexual urge for him to pounce on her? It was a case of Protection of Children from Sexual Offences (POCSO) Act and the High Court got away with a rap on the wrist.

That being said, should “control sexual urge” also come under “changes on ground” to prevent rape? Is “sexual urge” mentioned in the law book? A doctor has to weigh in; perhaps in tandem with a psychologist. Procedural lapses of police and governments come only after the fact. The mass of rapes are committed by somebody known to the victim/survivor.

There is also the category of predators who step out home every evening to stalk and rape random female victims. The Supreme Court’s Tuesday observation that “medical professions have become vulnerable to violence. Due to ingrained patriarchal biases, women doctors are targeted more. As more and more women join the workforce, the nation cannot wait for another rape for things to change on the ground” applies to all
categories of rape victims, not just to a doctor taking a nap in the seminar hall of a hospital.

The Calcutta High Court’s decision to acquit a rapist who had sexually assaulted an adolescent should be
condemned unequivocally. Such rulings are what encourages potential rapists. There was the case of the rapist-murderer of a 4- year-old who was let go with the observation that even “sinners have a future”. Courts across India routinely get away after delivering such half-baked judgments.

The Calcutta High Court was awarded with accolades for its ruling in the doctor’s rape case. But what about its “objectionable observations” in the case of sexual assault on an adolescent? Advising young adolescent girls to “control their sexual urge” is not a judge’s brief and judges should refrain from delivering such idiocy. Like the Supreme Court said, writing judgements isn’t careless work. The bench of justices Abhay S Oka and
Ujjal Bhuyan said it had passed umpteen directions on POCSO cases.

And Justice Oka made it a point to remind that the directions had also to do with how judgements should  be written by the courts. The Supreme Court had on Dec 8, 2023 criticised the Calcutta High Court’s verdict and its “highly objectionable and completely unwarranted” observations. The apex court took cognisance of some of the observations and had initiated a writ petition on its own, asking judges not to “preach” while writing judgements.

Then, in December 2023, the Mamata Banerjee government had also challenged the October 18, 2023 judgment of Calcutta High Court for the “objectionable observations.” The Calcutta High Court had observed that adolescent girls 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.”

With that the High Court acquitted the rapist who had been given a 20- year sentence for the sexual assault
committed on an adolescent. On January January 4, the Supreme Court found “certain paragraphs” in the High Court verdict “problematic” and blamed the “writing” for the “absolutely wrong” judgment. Earlier on
December 8, 2023, the Supreme Court referred to certain observations made by the High Court and said, “Prima facie, the said observations are completely in violation of the rights of the adolescents guaranteed under Article 21(right to life and personal liberty) of the Constitution of India.” The man had been convicted of offences under sections 363 (kidnapping) and 366 (kidnapping, abducting or inducing woman to compel her marriage) of the Indian Penal Code as well as section 6 of the Protection of Children from Sexual Offences (POCSO) Act.

The top court said the high court was called to adjudicate only on the merits of the appeal. “But we find that the high court has discussed so many issues which were irrelevant. Prima facie, we are of the view that while writing a judgment in such an appeal, the judges are not expected to express their personal views. They are not expected to preach.”

The High Court acquitted the man as it was a case of “nonexploitative consensual sexual relationship between two consenting adolescents, though consent in view of the age of the victim is immaterial.” It said it was the duty/obligation of every female adolescent to “protect her right to the integrity of her body; protect her dignity and self-worth; thrive for the overall development of herself transcending gender barriers; control sexual urge/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; protect her right to autonomy of her body and her privacy.”

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