A girl needs to restrain herself, “as in the eyes of society, she is the loser even if she gives in to the sexual pleasure for hardly two minutes”, said the Calcutta High Court (HC), while hearing a youngster’s appeal against conviction under the Protection of Children from Sexual Offences (POCSO) Act. The court said that it is every female adolescent’s “duty/obligation to control sexual urges”.
Commenting on the challenges faced in providing the right upbringing to adolescents owing to the influence of negative online content, a division bench of Justices Chitta Ranjan Dash and Partha Sarathi Sen released a set of guidelines for adolescent boys and girls.
“Every female adolescent should protect the integrity of her body, her dignity, and self-worth and she should strive for the overall development of herself transcending gender barriers,” the court added.
On the other hand, regarding male adolescents, the court said that their duty is to respect the aforesaid duties of young girls. “…and he should train his mind to respect a woman, her self-worth, her dignity and privacy, and right to autonomy of her body,” the court said.
‘SEXUAL URGE IS NOT AT ALL NORMAL AND NORMATIVE’
Further, while discussing the science behind the sex urge in humans, the court said that “sex in adolescents is normal, but sexual urge or arousal of such urge is dependent on some action by the individual, may be a man or woman”.
“Therefore, sexual urge is not at all normal and normative. If we stop some action(s), arousal of sexual urge, as advocated in our discussion supra, ceases to be normal,” the HC said.
‘RIGHTS ARE NOT CONFERRED, EARNED BY ACTION’
Dealing with the issue of decriminalising consensual sexual acts involving adolescents above 16 years, at the outset, the court advocated for introduction of comprehensive sexual education, emphasising the need for all children and adolescents to receive rights-based comprehensive sexual education.
However, it added that the practicality of the facts is that a “rights-based approach” as a panacea for all the problems that come is neither the solution, nor the just and correct approach. More importantly, the court emphasised that the ‘rights’ of an individual, be it the Fundamental Rights in the Constitution and various other Rights in different statutes, are not conferred, but are earned by action.
“If we look at Bentham’s theory, it is found that every right has corresponding duty/duties or obligation/obligations. By performing the obligation, you have to earn the Right/Rights. It is somewhat similar to the old oriental philosophy ‘Do your duty and earn your Right’,” the court asserted.
BALANCED APPROACH
Regarding the case, the court noted that the girl, who was 17 at the time of the incident, had submitted that she was in a relationship with the accused and out of her own volition, she had married him. The couple also has a child now.
While holding the case to be non-exploitative consensual sexual relationship between two consenting adolescents, the court set aside the conviction of the accused young man.
In a detailed judgment, the court, while underscoring the unintended consequence of the POCSO Act, also called for a balanced approach between protecting children and avoiding the criminalisation of consensual acts among adolescents above 16 years.
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