Commendable judgment from an open mind but conservative heart

Deccan Chronicle.  | Narasimhan Vijayaraghavan

Nation, Current Affairs

The judge went liberal by refusing to stick to the letter of the law on ‘presumption of guilt’ under Sec.29 of the POCSO Act.

Justice V. Parthiban

Infatuation is no crime. Teenagers are well informed about anything they don’t have to study. Put the two together, you have teenage relationships which morph into Pocso crimes. Justice V. Parthiban has caught the issue by the scruff of its neck, instead of indulging in “moral policing which many a robed brethren is indulging in” as Justice V.R. Krishna Iyer felicitously put it. At one level, the judge can be seen to be a ‘liberal’ at heart and therefore a media darling. But give the judgment a good read, as it deserves and one would realise that the judge was not giving ‘thumbs up’ to teenage sexual mores. Quite the reverse. His heart beats conservative. But his mind seems open, as it ought to be, that he has espoused a ‘more liberal provision’, and reduction in definition of ‘child’ from 18 to 16.

The answer is tucked in the very judgment. It is quite obvious that the judge became privy to a series of ‘crimes’ of such genre, where he appears to have noticed that our teenagers were getting irrationally exuberant in matters physical. Inexorable reality. What then is the alternative? If the judge were to indulge in moral policing; as he could easily have been prone to, it may have merely added to “legal literature in pontification mode” as judge Richard Posner put it. And it would have meant little. So, he has balanced the extremes and struck a middle path, which is commendable. As Jordan Peterson, a Canadian clinical psychologist, said in a recent public debate, “Let us get real. There are no true blue conservatives or true red liberals even in Donald Trump America.  Everyone is a mix of both and which virtue predominates for an issue in decision making would disclose the balance in the judgment or lack of it”.

Justice V. Parthiban, one can safely suggest, has struck a fine balance in his judgment. While his conservative values, at the very core, have been revealed, he has kept them on a tight leash, on this occasion, and letting his liberal values come to the fore, when it mattered most.  How one wishes that we had more of the same on the judicial firmament. How does one conclude that there is this subtle and efficacious tight rope walking, the judge has brought to bear in this widely reported verdict?

 “Before bringing the curtain down certain loud thinking on the issue needs to be expatiated. Of late, society has been witnessing alarming rise of incidence of sexual assault on women and children as well. More than treating such growing incidence as a legal issue dealing with the offenders of sexual assault by resorting to most deterrent provisions of penal laws, the cause for such perverse and wicked behaviour among some men, who were otherwise normal in  their disposition, need to be examined and studied, like what are the factors which are likely to constitute and provoke such predatory sexual instincts to some members of the society to commit such horrific crimes, shaking the very moral foundation of the society we live in. Society must collectively introspect what is it that drives some men to unleash their libidinous rage on hapless children.

The cause for such abominable deviant conduct on the part of the perpetrators of sexual crime on children and women is perhaps because of access to uncensored pornographic and erotic materials that are available on the internet 24 X 7. Access to such provocative and lewd sites lead to criminal sensuality that drives the perpetrators to commit such appalling crimes on children and women, in complete depravity. When minds are filled with lust, smouldering all the time by watching pornographic sites of all kinds on the handset or otherwise, such crimes are the natural result of depraved minds. Further, the society which dominantly come under the influence of mainstream cinema, must collectively express its concern over certain contents of some films, though certified by the Censor Board, which are created and intended to appeal to the baser instincts of the viewers. Avid viewers of such films, who are part of the society, cannot be expected to develop a healthy mindset towards women and children as they are susceptible to negative influence.

Their perception of women on such influence gets skewed and they look at girl children and women as their legitimate sexual prey by reducing them to the state of mere anatomical existence.

Society which has been rooted in one of the oldest civilisations of the world is facing its gravest challenge of steep cultural fall and degradation of an inconceivable kind, where children and women come under constant sexual attack day in and day out pushing society to the brink of its civilised existence. In a society where sexual crimes against children and women is the order of the day, something horrendously has gone wrong with evolution. The answer must be found beyond the criminal laws and its implementation. Sexual urge is a biological factor common to all living beings but when it assumes monstrous proportion resulting in proliferation of sex related crimes, then society as a whole needs to wake up to the challenge to protect itself from moral denudation. In such circumstances, it is socially imperative that the collective conscience of society must take upon itself the task of soul searching than leaving the ominous issue to be tackled only by the law enforcing authority. Society need not aim to be come an Utopian state, but it can at least prevent itself from perilously inching towards dystopian era”

 Please tell me, if this is not Justice Parthiban, the conservative, speaking, who then is? Praise be to him, for not ‘encouraging or eulogising teenage sexual peccadilloes as an expression of freedom of progressive choice’ (liberal construct), but identifying it, for what it is, a “horrendous practice’. Nevertheless, a reality, and therefore need for law to not be immutable. The judge’s liberal instincts have not been let loose but employed within his conservative value contours. That is why one is convinced that a delicate balance has been achieved and the judge has not given vent to his judicial libidinous instincts - to play on his own words. He has played safe and sound, yet progressive. That is where his dexterity and skill in marshalling the facts and legal matrix have attained consummation.

The judge went liberal by refusing to stick to the letter of the law on ‘presumption of guilt’ under Sec.29 of the POCSO Act. He acquitted the accused.  He then went beyond, to conduct a social audit of the precept and practice of this peculiar legislation. Suggest a solution which  is tempered by ‘no utopian dream’ he admits.  And has come up  with a sensible one - to the state to redefine the age of the ‘child’ in the statute to 16 from 18   and to provide for a  ‘more liberal provision’. His conservative core was wrapped in liberal visage, not trapped. For he is a conservative liberal, and not progressive, as in regressive. Jordan Peterson could have been more true.

(The writer is a practising advocate in the Madras high court)