A BW Legal World Dialogue on 'lowering age of consent' and 'relooking at age considerations under the Juvenile Justice Act' with Senior Advocate, Geeta Luthra | Women's Day Special Conference

BW Legal World initiated a Dialogue of Change in view of the International Women’s Day 2021, to bring real and enduring change one conversation at a time. BW Legal World in association with BW Businessworld hosted 50 women in law on March 06, 2021, at its virtual conference titled Gearing up for India@75: What Women Want—A BW Legal World Dialogue with Women Leaders in Law.

Here’s an edifying dialogue between the BW Legal World Managing Editor, Ashima Ohri and Senior Advocate Ms Geeta Luthra and one of India's most formidable women litigators. The recorded conversation focusing on the need for more diverse and inclusive workplace policies is available here.

Here’s the transcript of the BW Legal World Dialogue with Ms Geeta Luthra

ASHIMA OHRI: Ms Luthra, I'd like to open the dialogue with a question on the cases we hear about in the news, for example, the skin to skin judgment. Then there are many a time when unsavoury remarks are passed on the rape-victims. What would be your thoughts on this kind of mindset with which lawyers or judges sometimes deal with the cases. 

GEETA LUTHRA: So, let's talk about the skin to skin judgment for a bit because there's been a lot of protest about it. Media, social media, which is now a big space for the dissemination of information has also been very active on the skin to skin judgment. On behalf of the National Commission of women, I have represented in the Supreme Court in challenging the judgment as such an interpretation would not be in keeping with the spirit of the legislation. So, this is one aspect. Now, while I say this, I also want to say that this debate may be new to India and even though some people have said that this is a settled matter by various judgments, It's actually not! So, obviously defence counsel being defence counsel will raise their novel arguments. So, they said, when it says contact or when it says, physical touch, it's really talking to the skin to skin contact and skin to skin touch. Now that's not really the necessary or logical argument or conclusion. 

This matter went on in the UK also, where the United Kingdom Court of Appeal in two similar judgments. In one case there was someone touching and groping a person on their breast, and the other case involved somebody putting their hand in the track pant of a girl. Again, the Court of Appeal after much debate in the two judgments on the skin to skin touch repelled the argument that skin to skin touch needs physical contact. I'm sure our Supreme Court will come to the same conclusion. But I do believe that I may not agree with the view of the judge. But I do believe that this is why we have an appeal process, that if you don't agree or you find something which is absolutely perverse.  Perverse is a legal word, by the way, when we write our appeals we always are using the words, the judgment is wrong, perverse etc. But using the word perverse in a legal sense is different from using it in the generic sense. I agree, the judgment is wrong. I feel that the judgment needed to be appealed against very urgently and the laws set down once and for all. But I also believe that propriety demands us to be restrained when we start speaking badly of a Judge, because the judgment may be misplaced but you can't, then troll a judge for it. So, this is one aspect. I definitely do not agree with her viewpoint but while I don't agree with her viewpoint I also know that I have an avenue of appeal and I will take recourse to it. 

Now comes the other aspect about this recent discussion on, for example, somebody being told that you can't change your religion to marry. Now, the moment, a person is a major then they have a right to make a decision, who to put in power in the government, and who to elect. If I have that right, if I have a right to go on the road, drive and be a risk to myself and to society, I am then considered safe enough, a person to be able to make a decision about myself. If I can make a decision about my country, I can make a decision about my fellow-men when I'm driving, then definitely I can make a decision about myself. So, the argument can only be, let's educate our women more. It cannot be that let's take away this right from our women. We have to empower them, not disempower them.  Our job is to educate and to empower them. Our job is not to take away their strength and their right to make a decision about dignity and their mental and physical happiness. So, I believe that this thought is like the Khap Panchayat is deciding that no, these two people belonging to the same village can't marry when the Supreme Court in Selvaraj and in several other judgments has come down so heavily. This is part and parcel of the same mindset that our girls are too innocent. And therefore, we are the arbiters of their rights. Now that cannot be the way. The same mindset allowed adultery to be an offence, because then women's bodies were treated like a chattel. So, the moment that you are saying, with one breath, that this is an act of disempowerment of women, or treating them as unequal, then you cannot bring in legislation which is treating them as unequals and saying that even at 18 they can't decide. There are two debates raging in the country at the same time. One debate which says, lower the age of consent because young girls and boys, particularly in cities are having chances to meet each other, to fall in love, even before they are 18. So, there was one spate of judgments by the Delhi High Court which said that if someone's 17 you can't be saying its rape, particularly if they are 17 and a half and at 18 you say she can marry then can you say its rape at 17 and a half? Then the other debate was our girls maturing and boys maturing earlier. Should the Juvenile Justice Act, not protect people who commit heinous crimes. Because, ultimately, they are maturing. So, if you are thinking that they are maturing then to say that they are not mature enough when it comes to matters of their bodily integrity, would be again a contradiction. And that's why, when you look at the Juvenile Justice Act, when you look at liabilities or taking away the bar of juveniles being tried for say offence of rape in Nirbhaya, where some people say that the person who did the most heinous act was the person who got away the most because he was a juvenile. Now, all these are issues, where we need to have a considered studied policy with taking stakeholders, taking youngsters, seeing their ages, seeing their maturity, seeing the dichotomy between the cities, and those who are being brought up maybe in a more predicted environment in villages. So, this aspect I feel we need to look at. 

The other issue with regard to questions that may be asked like 'are you willing to marry'? Now this to my mind has become a taboo word in today's day. But let's look at the realities on the ground. There are two kinds of rape cases that are coming, rape by a person known or unknown, where there is no past history of any friendship and there is a rape, where people are friendly with each other, have been having premarital relations, and there is a promise to marry. Now both kinds of rape or allegations of rape or trials of rape or question of bail are completely different. But it does appear that 'will you marry her' will be a taboo question in the future and perhaps rightly so. A question that can be asked when you are looking at pure criminality. Either it is something that deserves bail or it is something that doesn't deserve bail. But just because the petitioner who is a boy, making a story that it is a girlfriend-boyfriend relationship gone sour and that we are not marrying for that reason may not be taken on its face. 

ASHIMA OHRI: Miss Luthra, rightly said. A very systematic and serious study needs to be done on the subject of age and the different ages of majority for men and women.

GEETA LUTHRA: Yes, under the Indian Majority Act, girls are considered major at 18 and boys at 21. And therefore, also say the Hindu Marriage Act says the age of marriage for a girl is 18 and a boy is 21. Time has come that we examine.- Is this discriminatory of women? Is it discriminatory of men? Is it got a mindset that women should always be dominated and therefore be younger, so that perhaps they may be dominated? I can't see what is the rationale for thinking that women would mature not at the same time as boys because very frequently It's said that women mature earlier. Very frequently it's said that boys are not, then the question here is, why should one be 21 and the other be 18. When majority is 18 years, why should both not be able to marry at the same age? Whether it's 18 or any other age that may be set down. Most of the world keeps it at a standard 18. Some countries do have a slightly younger age. 

ASHIMA OHRI: When we're aiming for equality and if two adults have the right to vote at 18, why not the choice to marry. On a lighter note that perhaps brings us to the discussion about driving down the age of drinking, which is currently different in different states.

GEETA LUTHRA: That’s true! Because you will make it safer than having people hide and drink and then have to lie and do infractions of the law. Because factually speaking you can't be having such an age of drinking. I mean that may not be only for Women's Day. It should be for Human’s Day maybe. 

ASHIMA OHRI: On that note, I'm hoping that we can bring uniformity to these laws. So, thank you so much, Ms Luthra, for joining us today and before we part, what would be your advice to women of today and tomorrow? 

GEETA LUTHRA: So, I would want women to actually be able to dream. And even, whether they get married or they don't get married. It's immaterial. The fact is that you have a right to dream, and a right to have the opportunity to have your dreams come true. And that opportunity for no reason should be denied to anyone. 

ASHIMA OHRI: Thank you so much, Ms Luthra and I hope we continue to dream on and live our dreams. Thank you so much for joining us with your lovely thoughts today. A very happy Women's Day to you!

Note: The automatic transcription has been lightly edited for a better reading experience. Some names and parts of the transcription may carry inadvertent errors that we are in the process of editing. Thank you for your understanding.