[This article is authored by S.V. Ghopesh, a Student at Tamil Nadu National Law University]

Introduction

The Protection of Children from Sexual Offences Act, 2012 (POCSO) has been subject to immense focus in contemporary times, with the issue of consensual sexual activity among adolescents currently barred by the law occupying the limelight, with the focus being on decriminalisation and reform of the legislation. However, in light of the recent Supreme Court judgement in Re: Right To Privacy of Adolescents, I believe renewed attention should be given towards analysing the most recent development in jurisprudence.

This judgment, the second of two rulings (the first, Re: Adol. I, passed last year), suspended a conviction for rape under the IPC and aggravated penetrative sexual assault under POCSO. I argue that these judgments, when read together, perpetuate a two-tiered justice system, creating further interpretive confusion regarding consensual relationships under POCSO and has forgone an immense opportunity to reform the same.

The Facts & The Ratio

The case involved a 14-year-old victim and a 25-year-old convict in a romantic relationship. She left home to live with him and later married him against her mother’s wishes. The Calcutta High Court reversed the POCSO Special Court’s sentencing, reasoning that the relationship was a “non-exploitative romantic relationship,” and further held that such relations between adolescents aged 16–18 fall outside the POCSO Act’s purview. It left the determination of such relationships to judicial discretion based on the facts of each case. It permitted judicial discretion for these determinations, arguing that POCSO undermines liberty in consensual relations.

However, the High Court’s judgment contained several questionable remarks, particularly concerning societal views on women’s virginity (¶¶15, 16). The Amicus Curiae in Re: Adol. I rightly pointed these out, and the Supreme Court severely scorned them, leading to its desire to reverse the High Court’s judgment.

Re: Adol. I’s core approach is very positivist in its nature upholding the letter of the law, holding that the aforementioned sections were clear and that the High Court severely erred in creating an exception to these sections and in allowing for judicial discretion in POCSO cases (¶19) though the Court was by no means oblivious to the larger public policy and practical realities. In this judgement, even though the man was convicted, no sentencing was imposed, awaiting more factual information from expert committee reports.

Re: Adol II dealt with the convict’s sentencing, largely guided by the Amicus Curiae’s opinions along with the preliminary and expert committee reports. These reports documented the victim’s struggles to free the convict (¶9) and highlighted systemic social and State failures, including executive machinery deficiencies, high adolescent elopement rates, and lack of awareness among the public as well as official awareness (¶11). The Court concluded that true justice lay in not sentencing the convict, citing lack of support for the victim and State failures. It emphasized that this judgment reflected State failure and should not be a precedent (¶27). Peculiarly, the Court invoked its extraordinary jurisdiction under Article 142 of the Constitution, suspending the convicted accused’s sentence for these reasons. This second judgment was clearly more realist, prioritizing practical realities over its predecessor’s approach.

The Two-Tiered Justice Mechanism

The two judgements differed in their fundamental approaches to the case, creating what I dub to be a two-tiered system of justice that causes interpretive confusion in regards to consensual adolescent relationships under the POCSO Act. I believe that the shift from the positivist stance in Re Adol I to the realist approach in Re Adol II leading to invocation of Article 142 resulted in the perpetuation of an ad hoc exception to POCSO’s strict liability, “the second tier” that furthers an inconsistent and non-uniform reading of POCSO.

Unlike the various High Courts which have contrary and differing views on whether consent provides for an exception to the punishments in POCSO cases, the Supreme Court has maintained an overall positivist approach to give effect to the stringent mechanisms in POCSO. This normal course however has repeatedly been strayed away by the Top Court in certain extra-ordinary cases which much like Re Adol II set aside the conviction of the accused using the powers inhered in Article 142. Such extra-ordinary case involves explicit consent, the victim prosecutor’s continued happiness with the accused as well as criminal sentencing causing harm to the victim’s well-being. The inherent problem with such an approach is that the Supreme Court instead of laying down concrete law, either positivist in terms of dissuading High Courts from considering consent or realist in terms of laying down guidelines so as to balance the realist and positivist and allow the High Courts to take a uniform approach, has always shied away from the same. The very existence of this extra-ordinary mechanism or the second tier has necessarily allowed the Supreme Court to not lay down a definitive law and has enabled the inconsistent and ununiform interpretations by the various High Courts. The two-tiered mechanism as exhibited in Re Adol II I believe leads to a juncture of fragmented as well as gaping jurisprudence in two significant ways.

Re: Adol & the Perpetuation of the Two-Tiered Justice System

Firstly, I note that the very creation of the second tier in the manner it has been done is problematic for the reason that the Court has shied away from balancing positivist and realist considerations which the Court has seemingly switched between. Such a failure of balancing is incoherent. The Court’s primary argument, as I understand it, in letting the realist approach be only an exceptional resort is that the facts of this case are very unique is flawed. The incoherency becomes clear when one compares Re Adol to other cases such as K Dhandapani v. State by the Inspector of Police among others, which similarly relaxed the sentencing under POCSO though invocation of Article 142. I want to draw attention to Dhandapani in particular which at first is a mirror situation – an older adult had physical relations with a younger girl in proximity (here, a maternal niece) and later married her. Here too, the Court categorically held that the setting aside the sentence of the accused cannot be a precedence and was a result of the peculiarities of the individual case – namely being the custom of marrying ones’ maternal uncle in that particular community and the happiness of the prosecutrix with the accused.

However, I argue that cases like Dhandapani cannot be precedence to further bolster the two-tiered justice system as unlike Dhandapani, the Court in Re Adol admitted the observations of final expert Committee which stress on the high elopement rates among adolescents and the lack of awareness among the public as well as the officials in such matters among a myriad of other general considerations (¶12) that reflect in-depth categorical social and state failures. Dhandapani and the other cases only dealt with individual circumstances where the victim had a consensual and a happy relationship or marriage, unlike both of the Re Adol cases which particularly note the systematic state failure as not just pertaining to the particular case but also applicable across the country. The fact that these observations shaped the necessity of the realist stance adopted in Re Adol II further underscores the need to clarify when realist considerations should apply instead of creating an exceptional two-tiered system. The need for such a balance is further reflected for instance in a recent Sikkim High Court POCSO judgement which allowed the appellant and victim who were in a consensual relationship to approach the Supreme Court as it did not have power to get into the merits of the peculiarity of the case like in Dhandapani through the invocation of Article 142.

Secondly, I argue that the second tier in Re Adol II is not a product of a mere oversight but rather a seemingly deliberate aversion to discussion. The Court had consistently maintained an affirmative attitude towards the suggestions of Amicus Curiae in both cases, such as condemning the objectionable remarks of the High Court and exercise of extraordinary jurisdiction in the present case, just to name a few. The Court in Re: Adol II went even as far as explicitly noting the need to carry forward these suggestions (¶30). However, there was one big suggestion which was glaringly not followed by the Court, the reason for which remains completely unexplained—the suggestion by the Amicus Curiae for introduction of criteria to identify “informed consent” (¶15). This suggestion seems to be aimed at introduction of criteria so as to determine whether the victim had given “informed consent,” thereby preventing inconsistent approaches taken by various High Courts—some High Courts have chosen to not prosecute consensual relations while others had.

Evidently, the Amicus Curiae here have not only gone against a pure positivist approach but also stressed on the need for the Top Court to lay some sort of guidelines, thereby endorsing an exception to the positivist reading of POCSO. It is peculiar that the Court has completely overlooked this particular suggestion, when a myriad of other realist considerations was addressed by the Court. Here, I find it all the more pertinent to point out that the Amicus Curiae in Re: Adol I (who later formed a part of the 2-member Amicus Curiae in Re: Adol II) explicitly highlighted the Calcutta High Court’s insistence on judicial wisdom as objectionable. This shows the Amici were open to revisiting their stance—yet the Court’s silence on judicial discretion and consent risks widening inconsistencies in POCSO’s application.

Conclusion

The two-tiered system which has continued to linger on that bolstered the inconsistent interpretation of the POCSO had a great opportunity to be reformed meaningfully in Re Adol II both owing to the general realist considerations dealt with in the case as well as the insistence by the much-appreciated Amicie to lay down a clear law to deal with consent in POCSO cases. However, the reluctance of the Court in going ahead with such an undertaking instead being content only with the case at hand and treating the facts of the case as extremely extra-ordinary circumstances the ruling of which cannot be taken as precedence in anyway only further perpetuates this two-tiered mechanism.