Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J. dismissed the petition being devoid of merits.

The factual matrix of the case is such that the victim aged 20 years alleged that when she was walking on the road, then the accused approached her and offered her lift in his car. After some time, he offered her water and then in the car made drinks. When she was taking drinks, then the accused told her that he has made her video taking drinks and he is going to post it on facebook. After that, he took her somewhere in the darkness, threatened her and committed rape upon her. The FIR was registered by the accused. The instant petition under Section 482 Criminal Procedure Code i.e. CrPC was filed on the ground that she has entered into compromise with the accused and now they have decided to marry.

The Court finding the petition strange appointed a Legal Aid Counsel Ms Narvada for the petitioner-victim. The Legal Aid Counsel apprised the court about the interaction with the victim after which the court observed that the victim of a sexual offence cannot have any locus standi to approach a Court for quashing of FIR registered for the sexual assault which she had faced. The Court refrains and restrains from observing any further. There is a lot to read between the lines.

The Court held “there is no merit in the present petition and the same is dismissed accordingly with no liberty whatsoever.”

[S v. State of Himachal Pradesh, 2021 SCC OnLine HP 7053, decided on 24-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioners: Mr N K Thakur and Mr Divyaraj Singh

For respondents: Mr Nand Lal Thakur, Mr Manoj Bagga, Mr Ram Lal Thakur and Mr Sunny Dhatwalia

Case BriefsSupreme Court

Supreme Court: In a case where the Gujarat High Court had stayed the arrest a person accused for offences under sections 376(2)(F), 376(2)(N), 377, 354(A), 354(D), 503, 506(1) and 509 of IPC and sections 66(E) and 67(A) of the Information Technology Act, 2000, the bench of BR Gavai and Krishna Murari, JJ has remitted the matter to the High Court and has asked to record the reasons in support of its order.

The High Court had, while issuing notice on the application for anticipatory bail, directed that the applicant shall not be arrested in the meanwhile.

Stressing upon the need for a reasoned order, the Court said,

“In such serious matter, when the High Court exercised its power of granting ad interim protection from arrest to the respondent no.2 herein, the least that is expected by the High Court is to record some reasons as to why it chooses to exercise its extra-ordinary jurisdiction. From the perusal of the impugned order, it could clearly be seen, that no reason even for namesake has been recorded in the impugned order.”

[Sorathia Bindi v. State of Gujarat, 2021 SCC OnLine SC 419, order dated 01.06.2021]

Op EdsOP. ED.

Introduction

Women and children can afford to be careless, but not men.

This quote, from the movie, The Godfather, very aptly depicts the socio-cultural fabric of India – the society that places men at the head of the family and hinders the recognition of men as victims of sexual offences. There exists a notion that a man is too strong to be subdued, and victims of sexual offences are weak. This notion prevents a male victim from reporting the offence, due to the fear of society, and the loss of one’s manhood. Similarly, the notion that women are the weaker sex, that requires protection, makes the idea of a woman being the perpetrator of such offences rather absurd. This essay will explore the patriarchal aspect of Indian society, and how patriarchy provides hindrance in extending the scope of laws against sexual offences, to include all genders, rather than just women.

A major setback in a case of proving sexual offence against a man, are physiological factors. It is contended that an engorged penis is proof of consent. This contention is as incorrect as saying that a woman had consented to a sexual act because she had vaginal lubrication during it. Reliance shall be placed on medical literature asserting that physiological factors, like an erected penis or lubricated vagina, are responses to sexual stimuli, and are out of control of a person –thus, not a proof of conscience consent for the sexual act. Some radical feminists like Christine Boyle claim that making such laws gender-neutral would be against the feminist movement, and would be dangerous to the women community, whereas other feminists support the recognition of male rape. Ideas from feminist literature, both – in favour of, and against – neutralising laws against sexual offences shall be discussed.

This essay would address the lacunae in existing laws and highlight the need for gender-neutral laws against sexual offences. The Constitution of India prevents the State from discriminating on the grounds of religion, race, caste, sex, and place of birth.[1] It also provides for social justice,[2] and society consists of more than one gender.

Sexual offences have been recognised as women-centric in India. The major issue against the neutralising of laws against sexual offences is that more often than not, men are the perpetrators. The Indian law on rape, in Section 375 of the Penal Code, 1860[3], speaks of the only man as the perpetrator, and woman as the victim. The same position is held by all laws regarding sexual offences, except in the case of gang rape, which regards only a woman as victim, but “one or more persons” as the perpetrator, and Section 354 of the Penal Code[4], that states that whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. But in these cases, as well, only a woman is identified as the victim.

Hurdles in Gender Sensitising the Law

Patriarchy

Oxford English Dictionary defines patriarchy as a society, system, or country that is ruled or controlled by men. Indian society is essentially a patriarchal society, whereby men are expected to behave in a certain predetermined way, any deviation from this way gives rise to ridicule from society – mainly other men. Some examples of how society wants an “ideal man” to behave include the notion that a man cannot show his emotions and cannot cry in public, he has to remain strong at all times, or that a man feels no pain. This gives rise to gender inequality and is the reason why some men, even if they support gender equality, are embarrassed to speak out about it. One other notion that a patriarchal society has against men is that they are expected to be interested in sexual intercourse all the time, thus negating the concept of the man’s consent in a sexual act.

Men themselves feel pressured to have sex due to society’s existing opinion about men and sex, and the idea that refusing to have sex would make them less of a man, or they might be perceived as gay.[5] The expectation of having an erection anytime, anywhere, with anyone, gives rise to the idea that men have no sexual autonomy. There are contradictions in the existing definition of gender neutrality concerning men and women. In the 21st century, it is not unusual for a woman to practice law, drive a truck, wrestle, or do any of the more masculine tasks. But if a man shows a feminine side, or has hobbies that are considered to be feminine by society, it is frowned upon.[6] Thus, today’s gender neutrality brings masculinity to everyone, irrespective of gender.

The patriarchal mindset of society prevents men from coming out and speaking up about incidents of sexual offences against them. Therefore, there exists no authoritative data showing the existence of men becoming victims of sexual offences. The need of the hour is for men to speak up about such incidents, in a magnitude to the likes of the magnitude of the feminist movement, to make laws against sexual offences gender-neutral.

It has also been continuously asserted that men react differently to sexual assault than women do. Ignoring harm caused to men is a steady pattern seen in the writings of radical feminist writers.[7] Radical feminists often claim that introducing gender neutrality to laws relating to sexual offences would be detrimental to the interests of women.[8] However, no evidence of the same, or of how men act differently in these situations, has been given by these authors.

Contrary to the prevalent opinion, a study conducted in America, in 1989, shows that the reaction of men in cases of sexual assaults is similar to that of women.[9] The characteristics of the victim and the reaction were noted to be the same. However, men found it difficult to report these incidents because of the stigma that sexual assaults are a woman-centric issue, or because of the fear of being branded as weak, or less of a man.

Misinterpretation of physiological factors

Without dwelling on data and statistics, it would be safe to conclude three things about sexual assaults. Firstly, men make up the larger portion of those who commit rape, however, a significant minority of women do commit acts of sexual offences. Secondly, the fact that women are statistically at a much greater risk of sexual assaults than men are, does not negate the risk faced by men. Thirdly, more men and boys are subject to sexual assaults than we are aware of. Many believe that male sexual assault is not a significant problem, mainly because of  lack of reported incidents. The reason for this lack of reported incidents is the lack of laws under which such incidents can be reported.

A constantly recurring argument against men in cases of sexual assault is that the man had an erected penis and/or that the man ejaculated, which leads to the assumption of the presence of consent on the part of the man. A majority of males also feel confused or guilty because they ejaculated, or had an erection, during the assault.[10] Laboratory studies indicate that during instances of sexual assault, a fight or flight response gets activated by the nervous system and adrenaline is released, resulting in excessive blood flow and lubrication in genital areas. Thus a person will not have unresponsive genitals during sexual assault if they are scared. The study conclusively argued that men do get erections unwillingly during sexual assaults.[11] It has been already established by courts in the USA that having an orgasm during the sexual assault will be inconclusive as proof of consent.[12]

In this respect, it is pertinent to understand the relationship between physical arousal and sexual pleasure. Men, right from puberty, are persuaded into believing that the penis is their sexual centre.[13] In many ways, this persuasion leads to the belief that an erection is the signifier of consent. But a man having an erection may be the result of the familiarity of the sexual act of penetration, or other activities related to sexual assault, and may not be the sign of consent. Physical and biological responses are not indicators of the emotional status of a person.

For centuries, it has been noted that hanged men often display an erection after they are dead.[14] This would not be an indicator of sexual desires. Evidence shows that this erection is the result of physiological response emanating from a combination of excitatory and inhibitory innervations that converge upon the lumbar cord reflex centre during asphyxiation.[15] Apart from this, there are various ancient incidents where men were forced to indulge in sexual activities. For example, in Bosnia, during the civil war, men were forced to engage in sexual conduct with each other.[16] Also, during the reconstruction period in southern parts of America, blackmen were forced to have sexual intercourse with women, while being whipped on their backs.[17] While all these acts would not be possible without an erected penis, characterising them as erotic scenarios would be misunderstanding and undermining the situations in which these erections occur. Thus, nothing biologically definitive is proven by the presence or absence of physical arousal.[18] In conclusion, an erection is not proof of consent.

Gender stereotyping by the media

In today’s day and age, the media plays an important role in shaping the minds of the people. The mainstream Indian media does not show men as victims of sexual assault and paints an unrealistic picture of an ideal man. The iconic dialogue of the most renowned Indian actor, stating that a real man feels no pain,[19] is still the yardstick of masculinity in the minds of the people. Indian movies use sexist humour and use comedy to dilute the seriousness of sensitive issues like misogyny. The stereotyping and harassment of gay and transgender characters is another concerning issue, which is used comically by the Indian media. The issue of molestation of a man has also been used comically. The only Bollywood movie to address the issue of sexual offences against men that gained popularity is the movie Aitraz, where the protagonist’s boss’ wife tries to sexually assault him.

The situation is the same for books. Claire Cohen, a prominent author, says that male rape victims are often feminised so that the readers be more accepting of female perpetrators.[20]

Thus, there is an immediate need to condition the Indian society to be accepting of all genders and to confront the directors and filmmakers about the stereotypical depiction of different genders, and the usage of serious issues in a comic way.

The reality of sexual offences

This scenario of male domination and crimes against women that once existed has now changed over the years and we are at a point in time where such legislations are no longer serving the purpose but rather neglecting and harming the other genders against whom false allegations and false cases are being framed simply because the laws that are in place today recognise women as the victims of sexual offences and ignore not only the possibility of them being the perpetrators but also of men being the victims, bringing in the question of the violation of the principle of equal protection of all persons under the law.

In a recent study it was found that out of 222 Indian men surveyed, 16.1% had been coerced into having sex. Despite the rape of men not researched as widely as a rape of a female, there are several statistics to suggest that men are raped and the prevalence of men rape is wider than is generally presumed. There are no statistics, surveys or reported cases of men being sexually harassed, which is because of the fear of mockery by the people around them. The male if harassed by a female is considered timid and if harassed by another male then people ridicule his manhood, keeping the premise intact that men are not sexually harassed.

Men are overwhelmingly responsible for sexual harassment against women in the workplace, but men are also the targets of sexual harassment far more common than typically assumed by researchers or the community at large. Many cases of female child abuse are accidentally discovered due to pregnancy, and familial abuse is stopped by marriage, but the disclosure rate among boys seems to be lower and accidental disclosure becomes more of a rarity leading to years of abuse.[21]

Several male rape myths have been posited to exist in the literature. These are summarised by Turchik and Edwards (2012) that men cannot be raped, “real” men can defend themselves against rape, only gay men are victims and/or perpetrators of rape, men are not affected by rape (or not as affected as women are), a woman cannot sexually assault a man, male rape only happens in prisons, sexual assault by someone of the same sex causes homosexuality,  homosexual and bisexual individuals deserve to be sexually assaulted because they are immoral and deviant, if a victim physically responds to an assault he must have wanted it.[22] In this way, society and community also become offenders by displaying unsupportive behaviour.[23]

In India, instances of sexual assault which do not conform to the male-on-female paradigm occur far more frequently than one could imagine.  Goa Police recently arrested a Delhi woman for wrongfully confining and sexually assaulting a French woman.[24] While official statistics in this regard are hard to come by, prominent feminist scholars like Laxmi Murthy acknowledge that “men too can be sexually assaulted- by men, as well as by women (in rare cases)” and that “women to are capable of perpetrating sexual assault on men”.[25] This impulse to view the rape narrative as exclusively that of a man violating a woman does an injustice to those whose own rape stories do not fit the typical mould that is easiest for us to understand.[26]

One of the arguments for making the laws gender neutral can be that the concept of men being dominant in the hierarchy of society needs to be changed. In light of such gendered history, feminists conceptualise rape exclusively in the context of the deeply entrenched power inequalities between men and women[27].

In this regard:

Gender neutrality within rape statutes means the concept that the criminal law should recognise that (…) men and women (and transgender persons) can be rape victims as well as perpetrators. It reflects modern understandings of the nature, effects and dynamics of non-consensual penetrative (and non-penetrative) sex acts.[28]

There is an argument that Indian society, being male dominant, is not ready for the concept of gender-neutral laws. The men accused will use the laws in filing counter-complaints against female victims and will defeat the purpose of the women protective laws. But not changing the outdated laws and moving forward with the static notion will end up harming the other side, that is the male victims who remain silent without speaking out to the world their side of the story. The legislators need to amend laws with the changing circumstances and pay equal heed to the sexual assaults faced by the men.

In looking at child sexual abuse specifically, the Indian Government did find in 2007 that, of surveyed children who reported experiencing severe sexual abuse, including rape or sodomy, 57.3% were boys and 42.7% were girls. The Delhi based Centre for Civil Society found that approximately 18% of Indian adult men surveyed reported being coerced or forced to have sex. Of those, 16% claimed a female perpetrator and 2% claimed a male perpetrator.[29]

Sexual offences and the law

The males are not the only class ignored by the legislators in this regard. It is a fact that transgenders also face crimes related to rape and sexual assault. The need for a holistic amendment in criminal law is required to make basic laws available to the victims irrespective of their gender. In State of Punjab v. Ramdev Singh[30], the Supreme Court observed:

Rape is not only an offence against the person of a woman rather a crime against the entire society. It is a crime against basic human rights and violates the most cherished fundamental right guaranteed under Article 21 of the Constitution of India.

While interpreting the above observation of the Supreme Court, the simple understanding can be that the crime of rape is against the whole society in which we are living. Also, the notion that the person of a woman only can be the victim/survivor of rape needs to be eradicated. Further with the acceptance of homosexuality as a natural sexual orientation, there is increasing concern on converting the gendered law on rape into a gender-neutral one.[31]

The Ministry of Justice in the UK released a report in 2013 that in the previous year approximately 85,000 women and 12,000 men were raped.[32] Despite such noteworthy statistics globally, sexual assaults against genders other than females remain unrecognised in the largest democracy of the world.

The Transgender Persons (Protection of Rights) Act, 2019, under Chapter  8 Section 18(d)[33] provides punishment to whoever tends to act causing sexual abuse to a transgender person, making them liable to imprisonment for a term which shall not be less than six months but which may extend to two years and with fine. This clearly shows the neglect on the part of the legislature towards transgender persons. The smell of discrimination can be sensed as the sexual abuse has been categorised as a petty offence punishing the abuser only for a maximum of two years and fine, whereas a similar offence against a cisgendered woman, the prescribed punishment may extend up to imprisonment of a lifetime. Incorporating gender-neutral laws in the IPC itself would, therefore, guarantee equal protection to victims of sexual offences, irrespective of their gender, which would align with the constitutional provisions.

The sexual harassment cases and the Government’s response for taking into consideration gender neutrality are perplexing. It was the 172nd Law Commission Report[34], where, for the first time, the plight of men was highlighted in light of the laws which are gender-centric and need a thoughtful amendment in the same, and later, by the Criminal Law (Amendment) Bill, 2012[35], it was proposed that the word “rape”, wherever it occurs, be replaced by the word “sexual assault”, to make the offence gender-neutral and also to widen its scope. But unfortunately, these guidelines were given no heed except by the University Grants Commission (UGC). The UGC after the notification of the Ministry of Human Resource Development exercised its power and made regulations against sexual offences in universities.

The UGC in the exercise of its power under Sections 26(1)(g) and  20(1) of the University Grants Commission Act, 1956[36] made these regulations apply to all the higher educational institutions in India. Regulation 3(d) of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 provides that:

it will be the responsibility of all the higher education institutions to act decisively against all gender-based violence perpetrated against employees and students of all sexes recognising that primarily women employees and students and some male students and students of the third gender are vulnerable to many forms of sexual harassment and humiliation and exploitation.[37]

The above regulation is a step towards gender neutrality besides the Protection of Children from Sexual Offences Act, 2012[38]. It is worth noting here that the whole of the  Protection of Children from Sexual Offences (Amendment) Act, 2019[39] is gender-neutral except Section 3 of the Act which mentions only penetrative sexual assault.

Conclusion

In this article, we have tried to discuss and evaluate the various presuppositions regarding rape and other sexual offences, which have led to the conclusion that the need for making laws against sexual offences is not only urgent but also indispensable. Patriarchy may look advantageous for men on the face of it, but in reality, it has several drawbacks for men too. Notably, sodomy as a war crime has been known and recognised since time immemorial, yet, the Indian legislators choose to turn a blind eye towards this issue, and refuse to acknowledge that any person, irrespective of gender, can be a victim of sexual assault, or a perpetrator.

Further, the approach of the media in creating and maintaining the stereotypical gender images needs to change, to reflect reality. The media needs to show that a man can have hobbies that are considered “feminine”, and not be less of a man, and women can have “masculine” hobbies and behaviour and continue to be female. It is true that the media, as such, does not have a statutory duty to do so, but considering the wide impact, it has on society, a moral obligation for uplifting society should be made. The need for a gender-neutral law is not only reflected in Article 15 of the Indian Constitution but also to promote the importance of consent in sexual autonomy and bodily integrity, be it of any gender.

We also observed that as opposed to the popular perception, men do not encounter rape differently in contrast to ladies. Male controlled society directs that men have the quality or the intuition to retaliate during rape, whereas studies demonstrate something else. On the issue of resistance from radical feminist activists, we noticed that numerous schools of the feminist movement, including prominent activists like Brownmiller, have recognised and acknowledged the existence of male assault. As clear from our article, there is an urgent need to move from the contemporary phallus-centric laws which limit the talk on assault law. Further, we investigated how an absence of comprehension on the part of defence lawyers concerning bodily response to sexual acts can result in the miscarriage of justice in courts. There rises a genuine need to educate the justice system as well as the overall population about the truth of how sexual stimuli can be accomplished without conscious consent for sexual activity.

The solution for the recognition of sexual assault or all genders lies first in reframing all the current laws in a sexually neutral language to affirm the idea that sex is never again the foundation for deciding legal wrongs. Also, since the law is nothing but the collective will of society, the need for gender sensitise the whole justice system and update legitimate devices for investigative agencies is a sine qua non. To create an inclusive society, there is a need to instil diversity and comprehensiveness in thought as well as in real life. Last, however not least, making laws and preparing police officers are the most extreme a legislature can do; the genuine change will come just when the collective will of the individuals mirror the same.


*Students, National University of Study and Research in Law, Ranchi.

[1] Article 15, Constitution of India.

[2] Preamble to the Constitution of India.

[3] Penal Code, 1860, Section 375.

[4] Section 354 IPC.

[5] Charlene Muehlenhard and Stephen Cook, Men’s Self-Reports of Unwanted Sexual Activity, Vol. 24, Journal of Sex Research 52, (1988).

[6] Patricia Novotny, Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance? 1(3) Seattle Journal for Social Justice, Vol. 62, (2002), available at <https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1427&context=sjsj>, last seen on 20-12-2020.

[7] Janet E. Halley, Split Decisions: How and Why to Take a Break from Feminism, (2006).

[8] Joan McGregor, Is it Rape: On Acquaintance Rape and Taking Women’s Consent Seriously (1st Edn. 2005).

[9] Gillian Mezey and Michael B. King, The Effects of Sexual Assault on Men: A  Survey of 22 Victims, 19 Physiological Medicine 205 (1989).

[10] Roy Levin and Willy Burlo, Sexual arousal and orgasm in subjects who experience forced or non-consensual sexual stimulation, 11 Journal of Clinical Forensic Science 82, (2004).

[11] Philip Sarrel and William Masters, Sexual Molestation of Men by Women, 11(2) Archives of Sexual Behaviour 117 (1982).

[12] Curtis v. State, 223 SE 2d 721.

[13] Steve Pokin, Rape:  When the Victim’s a Man; It’s happened in homes, on city streets, in bars and parks.  Far more underreported than attack on women, male rape leaves many victims feeling powerless, alone and suicidal, The Press Enterprise (Riverside, CA.), 10-9-1995, at D01.

[14]Harvey L.P. Resnik, Eroticised Repetitive Hangings: A Form of Self-Destructive Behaviour, 26 AM. J. Psychotherapy 4, 10 (1972).

[15] Lisa Cardyn, Sexualised Racism/Gendered Violence: Outraging the Body Politic in the Reconstruction South, Vol. 100 Mich L Rev 675, 760 (2002).

[16] Siegmund Fred Fuchs, Male Sexual Assault: Issues of Arousal and Consent, Vol.  51 Clev St L Rev 93 (2004), available at <https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1305&context=clevstlrev>, last seen on 21-12-2020.

[17] Lisa Cardyn, Sexualised Racism/Gendered Violence: Outraging the Body Politic in the Reconstruction South, 100 Mich L Rev 675, 760 (2002).

[18] Susan Bordo, The Male Body: A New Look at Men in Public and in Private, 65 Farrar, Straus and Giroux 1st Edn. (1999).

[19] Amitabh Bachchan in the movie Mard (1985).

[20] Claire Cohen, Male Rape is a Feminist Issue: Feminism, Governmentality and Male Rape, (2014).

[21] Uma Chakravarti, Conceptualising Brahmanical Patriarchy in Early India: Gender, Caste, Class and State, 28 Economic and Political Weekly (1993), available at <https://www.epw.in/journal/1993/14/special-articles/conceptualising-brahmanical-patriarchy-early-india-gender-caste>, last seen on 20-12-2020.

[22]Turchik, J.A., & Edwards, K.M., Myths about Male Rape: A Literature Review, Psychology of Men & Masculinity, 13 (2012).

[23]Anderson, Irina and Doherty, Kathy, Accounting  for Rape, Routledge-US (2008).

[24] Mohua Das, Goa Police Book Delhi Woman for Sexual Assault on French Woman, Times of India (2021) available at <https://timesofindia.indiatimes.com/city/delhi/delhi-based-lgbt-activist-held-in-goa-after-sexual-assault-complaint-by-french-woman/articleshow/81300736.cms>.

[25] Partners for Law in Development (PLD), Comments by Laxmi Murthy to Criminal Law Amendment Bill 2000 at 3, online: PLD, <http://pldindia.org/wp-content/uploads/2013/04/comments-by-Laxmi-Murthy-to-Criminal-Law-Amendment-Bill-2000.pdf> (PLD, “Comments by Laxmi Murthy”).

[26]John Stokes, India’s Law Should Recognise that Men Can Be Raped Too, Scroll.in, available at <https://scroll.in/article/676510/indias-law-should-recognise-that-men-can-be-raped-too#:~:text=To%20view%20the%20crime%20exclusively,do%20not%20fit%20this%20mould.&text=As%20Section%20375%20of%20the,victims%2C%20much%20less%20female%20perpetrators>, last seen on 12-12-2020.

[27] Nivedita Menon, Gender Just, Gender Sensitive, Not Gender Neutral Rape Laws, Kafila, available at <https://kafila.online/2013/03/08/gender-just-gender-sensitive-not-gender-neutral-rape-laws/> last seen on 15-12-2020.

[28] Philip Rumney, In Defence of Gender Neutrality Within Rape, Seattle Journal for Social Justice 481 at 481, (2007).

[29] Supra Note 25, at 6.

[30] (2004) 1 SCC 421, 424 

[31] Navtej Singh Johar  v. Union of India, (2018) 10 SCC 1.

[32] An Overview of Sexual Offending in England and Wales, Ministry of Justice, Home Office and the Office for National Statistics, available at <https://www.gov.uk/government/uploads/system-offending-overviewjan-2013.pdf>, last seen on 20-12-2020.

[33] Section 18, Transgender Persons (Protection of Rights) Act, 2019.

[34] Law Commission of India, Report No. 172  on Review of Rape Laws (March, 2000) .

[35] Criminal Law (Amendment) Bill, 2012.

[36] University Grants Commission Act, 1956

[37] Regn. 3(d), University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015

[38]Protection of Children from Sexual Offences Act, 2012 

[39] Protection of Children from Sexual Offences (Amendment) Act, 2019.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of B. V. Nagarathna and M.G. Uma JJ. held that the accused does not have a right to seek bail for the reason that the mandate under Section 35 of the POCSO Act has not been completed.

The facts of the case are such that the victim, Kum Panchami was residing at Spoorthi Adoption and Fit Institution where she was given in adoption but because of some differences between the adopted child and the family, adoption was cancelled and the child started staying in Spoorthi Institution. The petitioner-accused 1 used to enter the institution during night hours and have sexual intercourse with the victims who are staying in the said Institution. Cases of sexual assault were also reported. A case under Sections 376(1), 376(3), 377, 506 of Penal Code, 1860 i.e. IPC; Sections 5(f)(i)(o)(p), 6, 21(2) of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’ for short); and Sections 3(1)(w)(i)(ii), 3(2)(v), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.  A single Judge bench dismissed the petition on merits holding that no case of bail is made out. The instant petition was filed to answer the references before a Special Bench headed by Chief Justice.

Counsel of petitioner-accused submitted that as per Section 35(1) of POCSO Act evidence of the child had to be recorded within a period of thirty days of taking cognizance of the offence by the trial Court. If the same is not so recorded, the reason for the delay has also to be recorded by the said Court. Further, as per Section 35(2) of the POCSO Act, the trial Court, having not completed the trial within a period of one year from the date of taking cognizance of the offences, petitioner/accused 1 was entitled to be released on bail.

Counsel for the respondent submitted that the statement of the victim under Section 161 of the Cr.P.C. had been recorded before the Magistrate, but the said statement recorded cannot be construed as evidence in terms of Section 35(1) of the POCSO Act. Merely because there was a delay in recording evidence or in the adjudication of the case and evidently Section 35 of the POCSO Act had not been complied with in the instant cases that would not straight away entitle the petitioner/accused 1 to be enlarged on bail.

Issue 1: Can the statement recorded under Section 164 of Cr.PC be considered to be evidence under Section 35 of the POCSO Act?

The Court further observed that Section 35 of the POCSO Act consists of two parts: firstly, it deals with the period for recording of evidence of the child and disposal of case. Sub-section (1) of Section 35 states that the evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court. Secondly, Sub-section (2) prescribes the period of one year from the date of taking cognizance of the offence for the purpose of completion of the trial. Of course, the said period prescribed is to be complied with, as far as possible, by the Special Court.

The Court further observed that on reading the relevant provisions of the POCSO Act, it clearly indicates that the said Act is a special legislation for the protection of children from offences of sexual assault, harassment and pornography, etc. The POCSO Act being a special piece of legislation must over-ride the general legislation. In this regard, it would be useful to observe that the POCSO Act is a combination of both substantive law as well as procedural or adjective law. Substantive criminal offences have been created under various provisions of the POCSO Act and the manner in which the adjudication of said offences ought to take place, namely the procedure to be followed is also provided for under the POCSO Act.

The Court further observed that Section 164 of Criminal Procedure Code i.e. Cr.P.C., deals with recording of confessions and statements by any Metropolitan or Judicial Magistrate made to him in the course of an investigation, the same is relatable to Sections 25 and 26 of the POCSO Act. But, Section 35 of the POCSO Act does not deal with recording of statement of a child, but recording of evidence of the child and disposal of the case. The said Section is relatable to Chapter XXIII of Cr.P.C., which deals with evidence in inquiries and trials, including mode of taking and recording of evidence. But, Section 35 of the POCSO Act, being under a special enactment, would prevail over the general provisions of Cr.P.C., particularly when there is any inconsistency between the said Section and Cr.P.C., as per the provisions of Section 42A of the POCSO Act.

The Court observed that a statement under Section 164 of Cr.P.C. is during the course of investigation or at any time afterwards before the commencement of the trial. But, the evidence recorded before the Special Court under Section 35 of the POCSO Act is during the course of the trial. The two cannot be equated and neither are they on same plane, hence the recording of statement under Section 164 of Cr.P.C. being prior to the commencement of the trial, it cannot be considered to be evidence under sub-section (1) of Section 35 of the POCSO Act.

The Court thus held “the statement recorded under Section 164 of Cr.P.C. made in the course of investigation by the victim child, cannot be considered as evidence recorded under Section 35 of the POCSO Act.”

Issue 2: Whether the accused is entitled to bail in case the mandate under Section 35 of the POCSO Act has not been completed?

The Court observed that the main object behind Section 35 of the POCSO Act is that the victim child must not only be rendered speedy justice but, at the same time, it is necessary to get over the legal proceeding at the earliest, so that the child could concentrate on rehabilitation and get on with his or her life.

The Court further observed that the expression “as far as possible”, is used by the Parliament, having regard to the genuine difficulties faced in the conclusion of a trial concerning a victim child under the provisions of the POCSO Act. If the evidence of the child is to be recorded within a period of thirty days from the date of taking cognizance of the offence, the trial under the provisions of the POCSO Act being a sessions trial, would mean that all provisions of Cr.P.C. which are not inconsistent with the provisions of the POCSO Act would apply and hence, there may be reasons beyond the control of the Special Court, for not being able to complete the trial under the POCSO Act within a period of one year from the date of taking cognizance of the offence.

The Court relied on judgment Neeru Yadav v. State of Uttar Pradesh, (2016) 15 SCC 422, wherein the guiding factors regarding the grant of bail under provisions of the POCSO Act were laid down:

(i) The nature of accusations and the severity of the punishment, in case of the accusation entail a conviction and the nature of evidence in support of the accusations;

(ii) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant;

(iii) Prima facie satisfaction of the court in support of the charge

The Court relied on judgment Varinder Kumar v. State of Himachal Pradesh, (2020) 3 SCC 321 and observed that individual rights of the accused as well as the societal interest for bringing the offender to book and for the system to send the right message to all in the society—be it the law-abiding citizen or the potential offender, have to be balanced. “Human Rights” are not only of the accused but also of the victim, the symbolic member of the society.

The Court thus observed that the object and purpose of Section 35 of the POCSO Act is to ensure that the victim child is secured from the trauma of trial of the case at the earliest so that she or he could be rehabilitated and reintegrated into society at the earliest. The said provision is not to be interpreted in favour of the accused so as to mandate release of the accused, if for any reason, evidence is not recorded within a period of thirty days of taking cognizance of the offence or the Special Court not completing the trial of one year from the date of taking cognizance of the offence.

The Court held “If for reasons beyond the control of the Special Court, the evidence of the child is not recorded within the period of thirty days of the Special Court taking cognizance of the offence, or if the trial itself is not completed within a period of one year from the date of cognizance of the offence, the same cannot lead to the accused being released on bail.”

[Hanumantha Mogaveera v. State of Karnataka, 2021 SCC OnLine Kar 12300, decided on 23-04-2021]


Arunima Bose, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J. rejected instant bail application in light of the observations made by the Court.

The instant appeal was filed by the petitioner seeking regular bail, incarcerating upon his arrest for alluring and raping a minor girl.

Counsel for the petitioner Mr.Rajesh Mandhotra submitted that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. It was further submitted that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

Counsel for the respondent State Mr. Nand Lal Thakur submitted that that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.

The Court observed that the conduct of the accused is so deplorable that it would make the life of young friends belonging to the opposite gender as miserable. They took advantage of her being with the male friend and the main accused forced himself upon her and they not only did that, they also made a video and made it viral. The accused appears to be pervert and, as such, there is no question to grant the bail to the accused.

The Court thus held “in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail.”

[Rohit Kumar v. State of HP, 2021 SCC OnLine HP 4454, decided on 06-05-2021]


Arunima Bose, Editorial Assistant has put this report together

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara J. dismissed the petition on the observations made hereunder.

The facts of the case are such that the victim was waiting for the bus at the bus stand when the accused who is petitioner in the instant case, who was her friend, reached in his pickup Jeep and offered to drop her home. The victim boarded the vehicle, but the accused took a detour on the way manipulating the victim that he would take a U-turn ahead and drop her at her home. However, instead of allowing her to alight, he brought the vehicle to an isolated place and then after intimidation established coitus, despite her protests. The FIR was registered and the petition was arrested. The petitioner by way of this petition before this Court is seeking regular bail.

The Court observed that statement made under Section 164 CrPC that she had said NO for sex to the accused, and the accused told her not to cry; otherwise, he would force himself upon her. In such circumstances of threat and coercion in a secluded area, the victim was forced to cooperate with the accused, which explains the absence of physical injuries on her body, and the presence of semen, indicating unprotected.

The Court further observed that when the curriculum does not include the proper sex education, the children raised by such societies fail the women time and again. NO MEANS NO- The simplest of sentences have become the most difficult for some men to understand. No does not mean yes, it does not mean that the girl is shy, it does not mean that the girl is asking a man to convince her, it does not mean that he has to keep pursuing her. The word NO doesn’t need any further explanation or justification. It ends there, and the man has to stop. In the present case it is clear that, the victim said no to the accused when he started touching her, but he continued. It nowhere implies consent, or zeal and desire to explore and feel each other in romantic love.

The Court held

“the petitioner fails to make out a case for bail. The petition is dismissed with liberty to file a new bail application in case of changed circumstance”.

[Suresh Kumar v. State of HP, 2021 SCC OnLine HP 4434, decided on 05-05-2021]


Arunima Bose, Editorial Assistant has put this report together 

Counsel for the petitioner: Ms. Ritika Jassal and Mr. Aditya Thakur

Counsel for the respondent: Mr. Nand Lal Thakur

Case BriefsSupreme Court

Supreme Court: After the plight of a blind Scheduled Caste woman who was raped reached before the bench of Dr. DY Chandrachud and MR Shah, JJ, the Court did an in depth analysis of intersectional oppression, the punishment to be awarded in such cases and what all factors need to be considered by the Courts while dealing with such cases. The Court said,

“When the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds. Transwomen may face violence on account of their heterodox gender identity. In such a situation, it becomes imperative to use an intersectional lens to evaluate how multiple sources of oppression operate cumulatively to produce a specific experience of subordination for a blind Scheduled Caste woman.”

In the present case, a blind girl belonging to a Scheduled Caste community was raped inside her own home by her brothers’ acquaintance. The accused was convicted under under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 19891 and Section 376(1) of the Indian Penal Code.

Uitlising the facts of this case, the Court explored a disturbing trend of sexual violence against women and girls with disabilities and to set in motion a thought process for how the structural realities resulting in this state of affairs can be effectively addressed.

“… women with disabilities, who inhabit a world designed for the able-bodied, are often perceived as “soft targets” and “easy victims” for the commission of sexual violence. It is for this reason that our legal response to such violence, in the instant case as well as at a systemic level, must exhibit attentiveness to this salient fact.”

Intersectionality and it’s analysis

Intersectionality can be defined as a form of “oppression [that] arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone…”.[1]

An intersectional lens is useful for addressing the specific set of lived experiences of those individuals who have faced violence and discrimination on multiple grounds. A single axis approach to violence and discrimination renders invisible such minority experiences within a broader group since it formulates identity as “totemic” and “homogenous”.

“A legal analysis focused on delineating specific dimensions of oppression running along a single axis whether it be caste, disability or gender fails to take into account the overarching matrix of domination that operates to marginalise an individual.”

An intersectional analysis requires to consider the distinct experience of a sub-set of women who exist at an intersection of varied identities. This is not to say that these women do not share any commonalities with other women who may be more privileged, but to equate the two experiences would be to play down the effects of specific socio-economic vulnerabilities certain women suffer. At its worse it would be to appropriate their pain to claim a universal subjectivity.

“… an analysis of intersectionality does not mean that we see caste, religion, class, disability and sexual orientation as merely “add ons” to the oppression that women may face. This is based on the assumption that gender oppression is oppressive in the same way for all women, only more so for women suffering marginalization on other grounds.”

Intersectionality requires Courts to analyse law in its social and economic context allowing us to formulate questions of equality as that of “power and powerlessness” instead of difference and sameness. The latter being a conceptual limitation of single axis analysis, it may allow certain intersectional claims to fall through the cracks since such claims are not unidirectional in nature.

Hence, there is a need for the Court to address and unpack the qualitative impact of the various identities an individual might have on the violence, discrimination or disadvantage being faced by them in the society.

Disabled Witnesses and their testimonies

A survey and analysis of High Court judgments by Saptarshi Mandal indicates that the testimony of the disabled witnesses is devalued by not recording the testimony of the prosecutrix at all; or recording it without adherence to correct legal procedure, thereby rendering it ineffectual; dismissal of the testimony for its lack of intelligibility or for not being supported by the condition of her body[2].

“This kind of a judicial attitude stems from and perpetuates the underlying bias and stereotypes against persons with disabilities. We are of the view that the testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-a-vis their able-bodied counterparts.”

As long as the testimony of such a witness otherwise meets the criteria for inspiring judicial confidence, it is entitled to full legal weight. It goes without saying that the court appreciating such testimony needs to be attentive to the fact that the witness’ disability can have the consequence of the testimony being rendered in a different form, relative to that of an able-bodied witness.

Protection of Members of Scheduled Castes and Scheduled Tribes

Section 3(2)(v) of SC & ST Act

Under Section 3(2)(v), an enhanced punishment of imprisonment for life with fine is provided where

(i) The offence is committed by a person who is not a member of a Scheduled Caste or Scheduled Tribe;

(ii) The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or more; and

(iii) The offence is committed “on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe” or such property belongs to such a person.

The key words in this Provision are “on the ground that such person is a member of a SC or ST”. The expression “on the ground” means “for the reason” or “on the basis of” and recognizes only a single axis model of oppression.

“…such single axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem.”

However, the provision cannot be read as “only on the ground that the victim was a member of the Scheduled Caste.” The statutory provision does not utilize the expression “only on the ground”. Reading the expression “only” would be to add a restriction which is not found in the statute. The statute undoubtedly uses the words “on the ground’ but the juxtaposition of “the” before “ground” does not invariably mean that the offence ought to have been committed only on that ground.

“To read the provision in that manner will dilute a statutory provision which is meant to safeguard the Scheduled Castes and Scheduled Tribes against acts of violence which pose a threat to their dignity.”

A true reading of Section 3(2)(v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence.

Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words “on the ground of” under Section 3(2) (v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”, thereby, decreasing the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction.

“Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise.”

The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these.

However, since the offence in the present case took place before the amendment, on 31 March 2011, the Court held that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) was consequently set aside.

Why the accused in the present case deserved punishment no less than a life imprisonment?

  • Prosecuterix was blind since birth.
  • Accused was known o her brothers and used to visit their house often. T
  • Bereft of eye-sight, prosecuterix was able to identify the appellant by his voice with which she was familiar.
  • Shortly before entering prosecuterix’s home, he enquired of her mother where her sons were, when he was told that they were not at home. The appellant entered the house and subjected the prosecuterix to a sexual assault.
  • When the mother entered the house she found the prosecuterix in a nude condition on the ground bleeding from the injuries sustained on her genitals.

Hence, the nature and circumstances in which the offence has been committed would leave no manner of doubt that the appellant had taken advantage of the position of the woman who was blind since birth.

“A heinous offence has been committed on a woman belonging to Scheduled Caste. The imposition of a sentence of imprisonment for life cannot be faulted.”

[Patan Jamal Vali v. State of Andhra Pradesh, 2021 SCC OnLine SC 343, decided on 27.04.2021]


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

For appellant: Advocate Harinder Mohan Singh

[1] 4 Mary Eaton, Homosexual Unmodified: Speculations on Law‟s Discourse, Race, and Construction of Sexual Identity, in LEGAL INVERSIONS: LESBIANS, GAY MEN AND THE POLITICS OF THE LAW, Didi Herman and Carl Stychin eds. (Philadelphia: Temple University Press 1995), p. 46.

[2] 1 Mandal, Disabled Women Testimony in Rape Trials, supra n. 23, p. 6.

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit, J., granted anticipatory bail to the petitioner accused of committing sexual offence.

Petitioner was accused for the offences under Sections 376, 420 and 506 of Penal Code, 1860 and Section 66-B of Information Technology Act, 2000 and by the present petition seeks bail.

State while opposing the petition submitted that the offences alleged against the petitioner are serious in nature and it would be unsafe for the society if offenders like petitioner is granted bail.

Thus in view of the above Judge of the lower Court had rejected his claim.

Bench on perusal of the petition papers and on consideration of the contentions submitted by the counsels granted anticipatory bail for the following reasons:

  • seriousness alone is not the criteria to deny liberty to the citizen when there is no prima facie case from the side of the State Police;
  • version of the complainant that she was subjected to rape on the false promise of marriage in the given circumstances of the case, is bit difficult to believe at this stage; there is a letter allegedly written by the complainant to the effect that she was ready to withdraw the complaint if a compromise is brought about, especially when the complainant had employed the services of the petitioner since last two years or so; nothing is stated by the complainant as to why she did not approach the Court at the earliest point of time when the petitioner was allegedly forcing her for sexual favours;
  • nothing is mentioned by the complainant as to why she went to her office at night ie., 11.00 p.m.; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished;
  • version of the complainant that she had been to Indraprastha Hotel for dinner and that the petitioner having consumed drinks came and sat in the car, even if is assumed to be true, there is no explanation offered for not alerting the police or the public about the conduct of the petitioner

Thus in view of the above, petitioner was granted bail. [Sri Rakesh v. State of Karnataka, Criminal Petition No. 2427 of 2020, decided on 22-06-2020]

Case BriefsHigh Courts

Bombay High Court: Prithviraj K. Chavan, J., dismissed the present appeal filed challenging the Judgment passed by Special Judge under Protection of Children from the Sexual Offences Act, 2012 wherein he was convicted under Section 6 of POCSO Act.

Appellant has been convicted of Section 342 of Penal Code, 1860. He came to be acquitted of offences punishable under Section 10 of POCSO Act and under Section 376, 366(A) of IPC.

Facts of the Case

Victim a 5 ½ years old girl went out to play with a small boy in her neighbourhood when the Appellant took the girl to his house on the pretext that he would show her songs on his mobile and later PW 6 (eye-witness) asked PW 3 (relative of victim’s mother) to see what appellant was doing with the victim, when PW 3 peeped in the house she saw that the victim was made to lie down on the ground in a prone position and appellant was lying on her person. Victim told PW3-M that when she went in search of Babu for playing, the appellant took her in the house, bolted the door from inside and then pulled her slacks down and made her lie in prone position on the ground. He put his penis in her anus and was moving it.

It has been stated that as per Rule 33(7) of POCSO Act, the identity of the victim as well as all the family members, relatives, neighbourhood or any other information by which identity of the victim is revealed is required to be concealed.

Investigating Officer laid a charge-sheet under Sections 376, 342, 366A, 377 of PC read with Section 6 and 10 of the POCSO Act. Special Judge after considering the evidence on record and after hearing the prosecution and defence convicted and sentenced the appellant.

By referring to the report of FSL, appellant’s counsel Aniket Vagal, argued that no male DNA was detected in vulval swab or anal swab of the victim.

APP, S.V. Gavand while opposing the contention of the appellant’s counsel submitted that there is no need to refer the medical evidence as the appellant was just stopped from inserting his penis in the anus of the victim. Appellant was about to commit an offence as provided under Section 3 of the POCSO Act. Appellant betrayed the trust of the victim who used to refer him as ‘Dada’. She was in a fiduciary capacity with that of the appellant. Further, it is submitted that this is not a case in which leniency is required to be shown to the appellant.

Decision

High Court on noting the above-discussion stated that, the victim PW2-G called the appellant dada meaning she had full faith and respect towards the appellant who betrayed her trust by molesting her.

Appellant was about to commit aggravated penetrative sexual assault upon PW 2 but due to intervention of PW 3, he could not succeed in his nefarious design and thus the act was in fact about to be accomplished by him since he had already started movements of his penis over the posterior part of the victim.

Appellant did an attempt towards an act of committing aggravated penetrative sexual assault and, therefore, the trial court has rightly appreciated all the circumstances and facts on record by passing an appropriate sentence of imprisonment.

Bench cited the Supreme Court Case – Madan Gopal v. Naval Dubey, (1992) 3 SCC 204, wherein it was held that,

“offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.”

Relying on the above-stated case the Bench stated that the Court in the above case is loud and clear as to how such offences are required to be dealt with who are menaces to the civilized society and therefore, they should be mercilessly and inexorably punished.

In the present case, there is no question of reformation of the appellant as he was quite a grown-up male who knew the consequences of his act.

Thus in view of the above, the appeal needs to be dismissed and no interference is warranted. [Baburao v. State of Maharashtra, 2019 SCC OnLine Bom 5720, decided on 20-12-2019]

Case BriefsSupreme Court

Supreme Court: While hearing the plea seeking compensation of Rs 10 lakh for the parents of an eight-month old baby who was allegedly raped by her 28-year-old cousin in Delhi in the month of January 2018. The 3-judge bench Dipak Misra, AM Khanwilkar and Dr. DY Chandrachud, JJ directed the Registrar Generals of all the High Courts to send intimation to the Supreme Court Registry about the pendency of the cases instituted under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the status of those cases. The Court said that the Registrar Generals may constitute a team, if necessary, to prepare district-wise data.

Earlier, on 01.02.2018, the petitioner had submitted before the Court that there should be speedy disposal of the cases registered under the POCSO Act. Hence, the Court had asked him to file a chart containing data with regard to the cases pending at various places, along with the reasons for delayed disposal, so that the Court can take a holistic view of the matter.

The Court will now take up the matter on 20.04.2018. [Alakh Alok Srivastava v. Union of India, 2018 SCC OnLine SC 212, order dated 12.03.2018]

Case BriefsSupreme Court

Supreme Court: Refusing to expand the scope of the word ‘child’ under Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) to include  the   “mental   age”   of   a   person   or   the   age determined   by   the   prevalent   science   pertaining   to psychiatry   so   that   a   mentally   retarded   person   or   an extremely intellectually  challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term “child”, the bench of Dipak Misra and R.F. Nariman, JJ held that the Parliament has felt it appropriate that the definition of the term “age” by chronological   age   or   biological   age   to   be   the   safest yardstick   than   referring   to   a   person   having   mental retardation.

In the case where both the judges wrote their separate but concurring opinion, it was said that the POCSO Act has identified minors and protected them by prescribing the statutory age which has nexus with the legal eligibility to give consent. It may be due to the fact that the standards of mental retardation are different and they require to be determined   by   an   expert   body.   The   degree   is   also different.  If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether   there   is   a   consent   or   not.   In   certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula.

Explaining the scope of the power of the Court to interpret the word “child” to give it a broader meaning, it was noticed that the legislature despite having the intent in its Statement of Objects   and   Reasons   and   the   long   Preamble   to   the POCSO Act, had defined the term “age” which does not only mention a child  but adds the words “below the age of 18 years”. The Court said that had the word “child” alone been mentioned in the Act, the scope of interpretation by the Courts could have been in a different realm and the Court might have deliberated on a larger canvass.

The Court was hearing the appeal of a sexual assault victim suffering from Cerebral Palsy due to which though being a 38-year-old, her mental age is no more than 6-8 years. [Eera v. State, 2017 SCC OnLine SC 787, decided on 21.07.2017]