RIGHT TO PRIVACY OF ADOLESCENTS

Introduction

In the case of Re: Right to Privacy of Adolescents, the Supreme Court of India settled various conflicting issues, and accordingly, this ruling has become one of the most important rulings in Indian history. The issues such as extent of the powers of the High Court under Section 482 of the Code of Criminal Procedure 1973, element of force, persuasion, or enticement in the offense of kidnapping, rights of a child victim of rape, the purpose and content of judgments, the duty of a judge while deciding the case, and most importantly, the duty and responsibility of the State Government to rehabilitate and ensure the facilities of the Child Welfare Committee under the Juvenile Justice Act, were settled by the Supreme Court.

This case law note aims to present before the readers some of the important observations made by the Supreme Court in this case.

Facts of the case:

Briefly, the facts of the case may be summarized into the following points:

• The victim was a minor of 14 years who left her house and started living with the accused, aged around 25 years.
• Prosecution also alleged that the parties got married, but failed to prove through any evidence.
• The mother of the victim reported the matter around 9 days after the victim left her parents’ house with the police.
• Investigation in the case continued for around 2 years.
• The victim also gave birth to the girl child.
• For some time, the victim lived with her parents, and then she was abandoned by them and again started living with the accused.
• After investigation, the matter was sent to the Special Court as envisaged under the POCSO, and the learned Special Court Judge framed charges under Sections 363. 366 of the Indian Penal Code, i.e., for kidnapping, and also under Section 6 of the POCSO for the offense of committing aggravated sexual assault on the child.
• The conviction was confirmed, and the accused was sentenced to imprisonment for ten years by the Special Judge under the above-mentioned sections.
• The accused filed an appeal to the High Court, and the High Court set aside the conviction given by the Special Judge by exercising its power under Section 482 Crpc and Article 226 of the Constitution. The main reason that was given by the High Court was that the purpose of the POCSO Act was never to criminalize the consenting sexual assault. A non-exploitive sexual assault can never be made punishable as aggravated sexual assault. Accordingly, the accused was acquitted.
• Therefore, the Supreme Court took suo moto cognizance against the decision of the High Court.

Observations made by the Supreme Court: The Supreme Court made the following observations in the case of Re: Right to Privacy of Adolescents.

• The Supreme Court held that kidnapping as defined under the IPC involves taking, enticing, detaining, or some form of allurement or persuasion to take the victim out of the lawful guardian. However, the facts of the case clearly mention that the victim herself went to the house of the accuser. Therefore, in the absence of fulfilment of the ingredients of the definition of kidnapping, the accused can’t be held liable under Sections 363 and 366 of the IPC. The accused stands discharged under these sections.
• However, consent is not a factor under the POCSO Act. For a conviction under Section 6, consent of the victim is immaterial. Moreover, Section 376 of the IPC categorically says that consent is immaterial if the age of the victim is below 18 years. Moreover, the purpose of the Act has been confirmed through various judgments also. The prosecution has established the age of the victim as 14 years.
• Moreover, the High Court has committed a patent error in exercising its inherent power in Section 482 Crpc and allowing the parties to compound the case or to dismiss the case out of mutual settlement. Because it has already been clarified that such power can’t be exercised to compound heinous offenses like rape and murder.
• Therefore, the Supreme Court upheld the conviction under Section 6 of the POCSO Act but set that side under the IPC for kidnapping.

Important observations made by the Supreme Court: The following are the important and landmark findings that may be made from the decision of the Supreme Court.

• The Supreme Court stated that the High Court has created a blatant error in its decision. The role of judges is to write and pronounce their verdict based on the settled law of the land. The judges must not pass their personal opinion in the verdict. The observations such as women must control their sexual urges and the POCSO Act somewhere limits the individual liberty of women to make independent decisions related to their lives are highly indigestible and against the law. The judgment is passed so that the parties may analyze what the considerations are made by the Court and the application of law. A judgment is never meant for judges’ personal opinion. A judgment is not a piece of literature or a preaching book of the judges. Therefore, judges must not reflect their personal opinion in the judgment.
• Another important observation that was made by the Supreme Court was regarding the role of the state in protecting and upholding the rights of rape victims. It was emphasized that provisions of Section 19(6) of the of the POCSO Act are mandatory in nature, according to which whenever any police officer or the Special Juvenile Police Unit comes across any rape victim, the immediate information must be given to the Child Welfare Committee as mentioned under Section 27 of the Juvenile Justice Act.
• The rape victim in the present was already abandoned by her parents; in such circumstances, it becomes the duty of the state to ensure a safe and protected accommodation for the victim. This is also a protected right under Article 21 of the Constitution, which includes the right to live with dignity. Moreover, the Juvenile Justice Act itself has created based upon the international conventions and constitutional tenets according to which the whole procedure has been provided for the care, treatment, rehabilitation, development, and protection of children who are either in conflict with the law or are in need of care and protection.
• Also, Section 30 of the JJ Act unequivocally mandates the reporting to the CWC. The CWC has been sufficiently empowered to pass such orders as it may deem necessary to ensure the proper care, treatment, development, and rehabilitation of the child in need of care and protection.
• Even if the victim is unwilling, then also sufficient information must be given to the victim regarding the sufficient facilities. Also, counselling by social scientists or psychologists must be provided so that the victim may make an informed choice. Failure to take all these measures directly violates the constitutional rights of the victim. Therefore, Section 19 of the JJ Act is mandatory.

CONCLUSION

Accordingly, it may be stated that this case of Re: Right to Privacy of Adolescents is a significant ruling as it has settled various conflicting views. Observations such as mandatory intimation of information of sexual assault to the CWC under Section 19 of the POCSO Act have opened wide protections to the rights of victims. Observations regarding the role of judges (like judges should not preach but must apply the law) and purpose of judgment are equally indispensable.