A separate note written by R. Basant in the 2005 judgment of the Kerala High Court in the Suryanelli case reveals a voice of empathy advocating to raise the age of consent for sexual intercourse from 16 to 18.
His may have been one of the first judicial voices leading to the introduction of the Protection of Children from Sexual Offences Bill.
The Bill, approved by the Union Cabinet in April 2012, proposes to do away with the age of consent. It says that any sexual relations with a person aged below 18 years is rape, regardless of whether it is consensual or not — a protection the law could not extend to the Suryanelli victim, who, according to the judgment, had crossed 16 years of age at the time of the alleged crime.
Justice Basant (as he was then) begins his two-page note with a comment that the Suryanelli case raises “few disturbing thoughts” about the age of consent.
He was the puisne judge on the High Court Division Bench led by Justice K.A. Abdul Gafoor which acquitted 35 accused on “benefit of doubt” in the case. One of the reasons pointed out in the January 20, 2005 verdict was that the victim allegedly gave consent to sexual intercourse. The acquittal was recently set aside by the Supreme Court.
Logic and reason
In his note in the 2005 judgment, Justice Basant questions the very “logic” behind allowing “a person aged less than 18 the right to consent to sexual intercourse.”
“To me, it rebels against logic and reason that a system which considers a person aged less than 18 years to be a child/minor, not competent to take major decisions affecting herself or others for the purposes of the Indian Majority Act, Contract Act, Juvenile Justice Act, Child Marriage Restraint Act, Representation of the People Act, should concede to such child the right to consent to sexual intercourse,” Justice Basant wrote.
He further expostulates in the note of how 16 as the age of consent escapes common sense.
“Marry, she cannot at that age even with the consent of her parents. But consent she can to sexual intercourse so long as she does not go out of the keeping of her lawful guardian!” Justice Basant said.
He points out how the Law Commission had attempted to raise the age of consent to 18 in its 84 report out of “concern and compassion which society should bestow on its younger members.”
He rues how, if Parliament had accepted the report of the commission, the High Court could have “ignored” the “consent for intercourse allegedly given by the victim on which aspect we have chosen to concede the benefit of doubt to the appellants (35 accused).”
“It is difficult for the child, not groomed in proper atmosphere with a proper value system inculcated in it, to resist such temptations. Such children can be termed deviants but cannot be merely condemned and left to their fate… They too deserve the protection of the law against unintelligent, imprudent and immoral consent being extracted from them at that early age,” Justice Basant wrote, urging the Kerala Legislature to take the initiative to increase the age of consent to 18.
He adds while concluding the note: “Wait, we must. But the process has to start here and now. Such unfortunate incidents like the one in this case, which seem to be too frequent in Kerala scenario of late, should not be viewed merely as god-sent opportunities for improving stakes in the electoral battles to follow. The purpose of this added note is just that.”