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ABSTRACT
Feminists have demonstrated that positivist law adopts a patriarchal lens that marginalizes or ignores women’s lived realities. This leads to legal decision-making that does not reflect women’s real and varied experiences. Therefore, in this article, I argue for the use of feminist legal methods in adjudicating women’s rights by comparing two distinct judicial approaches emerging from recent decisions of the Indian Supreme Court and Delhi High Court respectively on issues that affect women’s rights and lives profoundly: the right to abortion and the criminalization of marital rape. I contrast the approaches taken by the Supreme Court in X v The Principal Secretary, Health and Family Welfare Department (2022) and by the Delhi High Court in RIT Foundation v Union of India (2022) through Hari Shankar J’.s opinion, to demonstrate how the use of feminist legal methods leads to findings more in tune with the gendered needs and concerns of women.
Acknowledgments
I would like to thank the anonymous peer reviewers for their initial comments on this article and the editors at the Indian Law Review for their patience and meticulous engagement with it. This article focuses on feminist methods by the judiciary. The study of the judicial dispensation of individual justices is beyond its scope. The judgement in X v Union of India, (2023) SCC Online SC 1338 was handed down while this article was being revised and prepared for publication. The analysis of this case in relation to the main argument is therefore limited.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Supplementary material
Supplemental data for this article can be accessed online at https://doi.org/10.1080/24730580.2024.2332821
Notes
1 X v The Principal Secretary, Health and Family Welfare Department, Govt of NCT of Delhi and Ors, 2022 SCC OnLine SC 1321.
2 RIT Foundation and Ors v The Union of India and Ors, 2022 SCC OnLine Del 1404.
3 This decision has been appealed to the Supreme Court of India. See ‘Marital rape: SC Notice to Centre on Plea Challenging Delhi HC Split Verdict’ The Indian Express (16 September 2022) <https://indianexpress.com/article/india/supreme-court-marital-rape-delhi-hc-split-verdict-8154477/> accessed 12 December 2023.
4 The Medical Termination of Pregnancy Act (as amended in 2021) (“MTP Act”), s 3(2): ‘Subject to the provisions of Sub-section (4), a pregnancy may be terminated by a registered medical practitioner.
(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by Rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental
abnormality.
Explanation 1.- For the purposes of Clause (a), where any pregnancy occurs as a result of failure of any device or
method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation 2.- For the purposes of Clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman”.
5 Medical Termination of Pregnancy Rules 2003 (as amended on 12 October 2021) (“MTP Rules”), Rule 3-B: ‘Women eligible for termination of pregnancy up to twenty-four weeks.- The following categories of women shall be considered eligible for termination of pregnancy under Clause (b) of Sub-section (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely-
(a) survivors of sexual assault or rape or incest;
(b) minors;
(c) change of marital status during the ongoing pregnancy (widowhood and divorce);
(d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
(e) mentally ill women including mental retardation;
(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government”.
6 Ms X v The Principal Secretary Health and Family Welfare Department, Govt of NCT of Delhi, 2022 SCC OnLine 2171.
7 ibid [13].
8 X v NCT Delhi (n 1) [99]–[119].
9 ibid [54].
10 X v NCT Delhi (n 1) [55].
11 Indian Penal Code 1860, s 375: Exception 2: ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape’. This provision was read down by the decision of the Supreme Court of India in Independent Thought v Union of India, (2017) 10 SCC 800 where the division bench held that the marital rape exemption would not apply where the victim was a minor, that is, below the age of 18.
12 RIT Foundation (n 2) [7]–[8].
13 Indian Penal Code 1860, ss 375, 376, 376A, 376AB, 376B, 376C, 376D, 376 DA, 376 DB and 376E.
14 RIT Foundation (n 2) [58]–[61] and [67].
15 ibid [62]–[63].
16 ibid [408]–[419].
17 ibid [577]–[579].
18 ibid [617].
19 ibid [589].
20 For more on what I mean when I say rape is an embodied experience, see Ann J Cahill, Rethinking Rape (Cornell University Press 2001) 107–142. On abortion as an embodied experience, see Judith Jarvis Thomson, ‘A Defense of Abortion’ [1971] 1(1) Philosophy and Public Affairs 47; Catriona Mackenzie, “Abortion and Embodiment” [1992] 70(2) Australian Journal of Philosophy 136, 147–50.
21 Joanne Conaghan, ‘The Siren Call of Legal Reason’ in Joanne Conaghan (ed), Law and Gender (OUP 2013) 199, 210.
22 See the opinion of Blackmun J. in Roe v Wade, 410 US 113 (1973), 154–55.
23 KS Puttaswamy v Union of India, (2017) 10 SCC 1 [298].
24 X v NCT Delhi (n 1) [100]–[106].
25 Katrin Bennhold and Monika Pronczuk, ‘Poland Shows the Risks for Women When Abortion Is Banned’ New York Times (Pszczyna, Poland, 26 June 2022) <https://www.nytimes.com/2022/06/12/world/europe/poland-abortion-ban.html#:~:text=The%20country%20is%20one%20of,China> accessed 23 December 2023.
26 Dobbs v Jackson Women’s Health Organisation, 597 US (2022), 33–34.
27 Ritika Jain, ‘SC says abortion amounts to murder, rejects 20-year-old Mumbai woman’s plea’ The Print (16 July 2018) <https://theprint.in/india/governance/sc-says-abortion-amounts-to-murder-rejects-20-year-old-mumbai-womans-plea/83524/> accessed 12 December 2023.
28 Sheida Tabaie, ‘Stopping Female Feticide in India: The Failure and Unintended Consequence of Ultrasound Restriction’ [2017] 7(1) Journal of Global Health 1.
29 On this, see Javed v State of Haryana, AIR 2003 SC 3057, in which the Supreme Court upheld the constitutional validity of a policy that prohibited persons with more than two living children from holding certain public offices in Haryana by relying on the need for population control; See also Devika Biswas v Union of India, (2016) 10 SCC 726, in which coercive sterilization of women was held to be violative of women’s reproductive autonomy, and by extension, of the right to life and personal liberty.
30 Socialist feminism, black and lesbian feminism brought discrimination on the axes of class, race and sexual orientation within the purview of feminism, which had initially been focused on sex/gender alone. The movement has become increasingly intersectional over time. See, for instance, Martha Minow, “Feminist Methods: Getting it and Losing it” in Katherine Bartlett and Rosanne Kennedy (eds), Feminist Legal Theory: Readings in Law and Gender (Routledge 1991) 357, 358–59.
31 Mary Jane Mossman, ‘Feminism and Legal Method: The Difference it Makes’ in Martha Albertson Fineman and Nancy Sweet Thomadsen (eds), At the Boundaries of Law (RLE Feminist Theory): Feminism and Legal Theory (Routledge 1991) 283, 284; Margaret Thornton, ‘Feminist Jurisprudence: Illusion or Reality’ (1986) 3 Australian Journal of Law and Society 5.
32 Ann C Scales, ‘The Emergence of Feminist Jurisprudence: An Essay’ [1986] 95(7) The Yale Law Journal 1373, 1384–85.
33 See Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End (NYU Press 1999); Alan Hunt, ‘The Theory of Critical Legal Studies’ [1986] 6(1) Oxford Journal of Legal Studies 1; Gayatri Chakravorty Spivak, ‘Can the Subaltern Speak?’ in Patrick Williams and Laura Chrisman (eds), Colonial Discourse and Postcolonial Theory: A Reader (Columbia University Press 1994) 66, 90–104; Veronica Gentilli, ‘A Double Challenge for Critical Race Scholars: The Moral Context’ [1992] 65(5) Southern California Law Review 2362, 2363–64.
34 See Isabel Marcus, ‘Reframing “Domestic Violence”: Terrorism in the Home’ in Roxanne Mykitiuk and Martha Albertson Fineman (eds), The Public Nature of Private Violence (Routledge 1994) 11; Elizabeth Schneider, ‘The Violence of Privacy’ in Roxanne Mykitiuk and Martha Albertson Fineman (eds), The Public Nature of Private Violence (Routledge 1994) 36; Ratna Kapur, Erotic Justice: Law and the New Politics of Postcolonialism (Glasshouse Press 2005) 35.
35 Catharine MacKinnon, Toward a Feminist Theory of State (Harvard University Press 1989) 191.
36 Ruth Gavison, ‘Feminism and the Public/Private Distinction’ [1992] 45(1) Stanford Law Review 1, 28–29.
37 Aparna Chandra, ‘Privacy and Women’s Rights’ [2017] 52(51) Economic and Political Weekly 46, 47.
38 Gavison (n 36) 41–42.
39 RIT Foundation (n 2) [569].
40 Carol Smart, Feminism and the Power of Law (Routledge 1989) 69.
41 See Vanessa E Munro and Jane Scoular, ‘Abusing Vulnerability? Contemporary Law and Policy Responses to Sex Work in the UK’ (2012) 20 Feminist Legal Studies 189, 197–98; Prabha Kotiswaran, ‘A Bittersweet Moment: Indian Governance Feminism and the 2013 Rape Law Reforms’ [2017] 52(25–26) Economic and Political Weekly 78; Shraddha Chaudhary, ‘Weaponising Criminal Law as Political Rhetoric: The Menace of Unprincipled Criminalisation’ (RGNUL Student Research Review Blog, 6 May 2021) <https://www.rsrr.in/post/weaponising-criminal-law-as-political-rhetoric-the-menace-of-unprincipled-criminalisation> accessed 12 December 2023.
42 Vasuki Nesiah, ‘Toward a Feminist Intersectionality: A Critique of US Feminist Legal Scholarship’ in Ratna Kapur (ed), Feminist Terrains in Legal Domains: Interdisciplinary Essays on Women and Law in India (Kali for Women 1996) 11, 54.
43 Patricia Smith, ‘Feminist Jurisprudence’ in Dennis Patterson (ed), A Companion to Philosophy of Law and Legal Theory (Blackwell Publishing 2010) 290.
44 See Lucida M Finley, ‘Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning’ [1989] 64 Notre Dame Law Review 886.
45 Susan Estrich, ‘Rape’ [1986] 95(6) The Yale Law Journal 1087, 1092.
46 Pratiksha Baxi, Public Secrets of Rape Trials in India (OUP 2014) 33–34.
47 Nicola Lacey, ‘Feminist Legal Theory and Rights of Women’ in Karen Knop (ed), Gender and Human Rights (OUP 2004) 13, 19.
48 Katherine T Bartlett, ‘Feminist Legal Methods’ [1990] 103(4) Harvard Law Review 829, 836.
49 ibid 880.
50 ibid 837.
51 See Arun Kumar Agrawal and Anr v National Insurance Company and Ors, AIR 2010 SC 3426. Further on the recognition of unpaid domestic work, see Prabha Kotiswaran, ‘An Ode to Altruism: How Indian Courts Value Unpaid Domestic Work’ [2021] LVI(36) Economic and Political Weekly 45.
52 Flavia Agnes, ‘India’s Family Laws Are Discriminatory. That’s Why Judges Shouldn’t Be “Neutral” on Gender’ (The Wire, 25 November 2021) <https://thewire.in/women/indias-family-laws-are-gender-blind-judges-shouldnt-be-afraid-to-question-them> accessed 15 January 2024.
53 Bartlett (n 48) 849.
54 ibid 851.
55 Bartlett provides a wide range of examples of practical reasoning against which feminist practical reasoning is distinguished. See Bartlett (n 48) 850, fn 79.
56 ibid 855.
57 ibid 856–58.
58 In Re French (1905) 37 NBR 359 (New Brunswick Supreme Court, Canada).
59 ibid 365.
60 Mossman (n 31) 289.
61 Rosemary Hunter, ‘Can Feminist Judges Make a Difference’ [2008] 15(1–2) International Journal of the Legal Profession 7.
62 See Rosemary Hunter, ‘An Account of Feminist Judging’ in Rosemary Hunter, Clare McGlynn and Erika Rackley (eds), Feminist Judgements: From Theory to Practice (Hart Publishing 2010) 30.
63 Smart (n 40).
64 Bartlett (n 48) 866.
65 See Catharine A MacKinnon and Andrea Dworkin (eds), In Harm’s Way: The Pornography Civil Rights Hearing (Harvard University Press 1998).
66 Heather Ruth Wishik, ‘To Question Everything: The Inquiries of Feminist Jurisprudence’ [1985] 1(1) Berkeley Journal of Gender, Law & Justice 64, 72–77.
67 Martha Albertson Fineman, ‘Introduction’ in Martha Albertson Fineman and Nancy Sweet Thomadsen (n 36) ×i, xiv.
68 Hunter (n 61) 3.
69 This is not to claim that the judgement was perfect or that it solved all of women’s problems regarding access to abortion, but that its use of feminist legal methods enabled a decision that was more grounded in women’s lived realities, and, in that sense, better. For a view on the shortcomings of the judgement, see Surabhi Singh, ‘The Supreme Court in X v NCT of Delhi: Feminist Expectations, Feminist Foregrounding but Feminist Outcomes?’ (2024) Indian Law Review https://doi.org/10.1080/24730580.2023.2298170.
70 X v NCT Delhi (n 1) [97].
71 State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75.
72 RIT Foundation (n 2) [577]–[579].
73 See John Stuart Mill, On Liberty and the Subjection of Women ;(Ware: Wordsworth 1996); Emma Goldman, Anarchism and Other Essays ;(Mother Earth Publishing Association 1910) 241–45.
74 Prem Chowdhry, Contentious Marriages, Eloping Couples: Gender, Caste and Patriarchy in Northern India (OUP 2009) 4.
75 See Simone de Beauvoir, The Second Sex ;(Vintage 1949); Betty Friedan, The Feminine Mystique ;(Penguin 1963); Julie Mitchell, Woman’s Estate (Penguin Books 1971); Susan Moller Okin, Women in Western Political Thought (Princeton University Press 1979); Michaele L Ferguson, “Vulnerability by Marriage: Okin’s Radical Feminist Critique of Structural Gender Inequality” (2016) 31(3) Hypatia 687.
76 RIT Foundation (n 2) [546], [551].
77 I restrict my argument regarding the relevance of feminist practical reasoning to the reasonable classification test, instead of undertaking a more expansive exercise of the role of feminism in shaping and deconstructing equality jurisprudence to retain the focus of my argument, which is built around the two cases under discussion. For a discussion on feminist constitutionalism and the space for feminism in India’s equality jurisprudence, see Shreya Atrey, ‘Feminist Constitutionalism: Mapping a Discourse in Contestation’ (2022) 20(2) International Journal of Constitutional Law 611.
78 Tarunabh Khaitan, ‘Equality: Legislative Review under Article 14’ in Sujit Choudhary, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 699, 702–11.
79 Independent Thought (n 11) [81]; Department-Related Parliamentary Standing Committee on Home Affairs (Rajya Sabha), One Hundred and Sixty Seventh Report on The Criminal Law (Amendment) Bill 2012 (March 2013) [5.9.1].
80 Independent Thought (n 11) [90].
81 RIT Foundation (n 2) [569].
82 Antony Duff and Sandra Marshall, ‘Public and Private Wrongs’ in James Chalmers, Fiona Leverick and Lindsay Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press 2010) 70.
83 (2009) 9 SCC 1 [11].
84 Ms X v NCT Delhi, High Court (n 5) [13]–[15].
85 Joel Feinberg, ‘Abortion’ in Tom L Beauchamp and Tom Regan (eds), Matters of Life and Death: New Introductory Essays in Moral Philosophy (Random House 1980) 212; See also Ann Gary, ‘Abortion: Models of Responsibility’ (1983) (2) Law and Philosophy 371 (The author assesses responsibility and/or fault based models of the anti-abortion argument and argues against their sustainability and sufficiency).
86 X v NCT Delhi (n 1) [132], [137].
87 RIT Foundation (n 2) [59], [533].
88 Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart Publishing 1998) 118.
89 ibid 121.
90 RIT Foundation (n 2) [544].
91 ibid [563].
92 ibid [553].
93 Chowdhry (n 74).
94 RIT Foundation (n 2) [544].
95 Ministry of Health and Family Welfare (Government of India), ‘National Family Health Survey (NFHS)- 4 (2015–16)’ (December 2017) 155 (only 1% women and 2% men in India had never been married by the age of 45–49).
96 Mary E John, Child Marriage in an International Frame: A Feminist Review from India (Routledge 2021) 147.
97 Leela Dube, ‘On the Construction of Gender: Hindu Girls in Patrilineal India’ (1988) 23(18) Economic and Political Weekly 11, 14.
98 See Chowdhry (n 74) 140–42; Law Commission of India (Government of India), 242nd Report on the Prevention of Interference with Freedom of Matrimonial Alliances (in the Name of Honour and Tradition): A Suggested Legal Framework (2012); Shakti Vahini v Union of India, (2018) 7 SCC 192.
99 Mary P Koss and Susan L Cox, ‘Stranger and Acquaintance Rape: Are there Differences in Victim’s Experiences?’ [1988] 12 Psychology of Women Quarterly 1 (rape by husbands was as violent as stranger rapes, and equally traumatic); Patricia M Frazier and Lisa M Seales, ‘Acquaintance Rape is Real Rape’ in Martin D Schwartz (ed), Researching Sexual Violence against Women: Methodological and Personal Perspectives (Sage Publications 1997) 54.
100 Ministry of Health and Family Welfare, National Family Health Survey-5 (2019–2021) (March 2022) 642 (’Among ever-married women age 18–49 who have ever experienced sexual violence, 82% report their current husband and 14% report a former husband as perpetrators’); Parvathi Benu, “Marital Rape: Most Married Women are Sexually Abused by their Husbands, says NFHS Data” The Hindu BusinessLine (16 May 2022) <https://www.thehindubusinessline.com/data-stories/data-focus/marital-rape-most-married-women-are-sexually-abused-by-their-husbands-says-nfhs-data/article65409875.ece> accessed 12 December 2023 (’The previous NFHS, which was out five years ago, also noted similar numbers’); Padma-Bhate Deosthali and others, ‘Women’s Experiences of Marital Rape and Sexual Violence within Marriage in India: Evidence from Service Records’ [2022] 29(2) Sexual and Reproductive Health Matters 1.
101 X v NCT Delhi (n 1) [23].
102 ibid [27]–[30].
103 Gauri Pillai, ‘Two Courts, Two Conclusions: Abortion Law in India’ (Indian Constitutional Law and Philosophy, 26 July 2022) <https://indconlawphil.wordpress.com/2022/07/26/guest-post-two-courts-two-conclusions-abortion-law-in-india%EF%BF%BC/> accessed 12 December 2023.
104 X v Union of India, (2023) SCC Online SC 1338 (“X v Union of India”).
105 See MTP Act, s 3 (n 4) and MTP Rules, Rule 3-B (n 5).
106 The MTP Act, s 5(1): ‘The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman’.
107 The MTP Act, s 3(2B): ‘The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board’.
The MTP Rules, Rule 3A: ‘For the purposes of section 3- (a) the powers of the Medical Board shall be the following, namely: - (i) to allow or deny termination of pregnancy beyond twenty-four weeks of gestation period under sub-section (2B) of the said section only after due consideration and ensuring that the procedure would be safe for the woman at that gestation age and whether the foetal malformation has substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped’.
108 Muskan Tibrewala, ‘Guest Post: The phantasm of “feticide” – On the Delhi High Court’s abortion order in R v. Union of India’ (Indian Constitutional Law and Philosophy, 25 January 2024) <https://indconlawphil.wordpress.com/2024/01/25/guest-post-the-phantasm-of-feticide-on-the-delhi-high-courts-abortion-order-in-r-v-union-of-india/> accessed 7 March 2024.
109 For instance, the Bombay High Court read s 5(1) of the MTP Act, which allows termination of pregnancy beyond 24 weeks when it is necessary to save the life of the pregnant woman, liberally and purposively. The High Court held that the meaning of “life” in the provision did not mean mere animal existence, but a life compatible with personal autonomy and human dignity, which would be affronted by the continuance of a pregnancy that causes injury to the physical or mental health of the pregnant woman. See XYZ v Union of India, (2019) SCC OnLine Bom 560 [78]–[80].
110 X v Union of India (n 104) [29]–[30].
111 ibid [30].
112 X v Union of India (n 104) [9].
113 Dobbs (n 26).
114 X v NCT Delhi (n 1) [56]–[59].
115 X v NCT Delhi (n 1) [90]–[96].
116 ibid [11].
117 National Legal Services Authority v Union of India, AIR 2014 SC 1863.
118 Ross Douthat, ‘How to Make Sense of the New LGBT Culture War’ New York Times (13 April 2022) <https://www.nytimes.com/2022/04/13/opinion/transgender-culture-war.html> accessed 12 December 2023; Gaby Hinsliff, ‘The PM Sees Votes in a Culture War Over Trans Rights, but This Issue Must Transcend Party Politics’ The Guardian (13 April 2022) <https://www.theguardian.com/commentisfree/2022/apr/13/local-elections-tories-culture-war-trans-rights-conversion-practices> accessed 12 December 2023 (the article demonstrates how cultural contestations have seeped into mainstream politics).
119 Dorjee Wangmo, ‘India’s Abortion Law Progressive but Excludes Us, Say Trans Men’, The Indian Express (30 July 2022) <https://indianexpress.com/article/lifestyle/indias-abortion-law-progressive-but-excludes-trans-men-transgender-rights-queer-lgbtqai-8056577/> accessed 12 December 2023.
120 Colectiva Valkirias, ‘Trans Men in Colombia Struggle to Access Safe Abortion’ (Open Democracy, 27 October 2021) <https://www.opendemocracy.net/en/5050/trans-colombia-abortion/> accessed 12 December 2023; Olivia McCormack, ‘Transgender Advocates say the End of Roe would have Dire Consequences’ The Washington Post (6 May 2022) <https://www.washingtonpost.com/politics/2022/05/06/transgender-men-nonbinary-people-abortion-roe/> accessed 12 December 2023.
121 This is a limited right. See, Rachana Mudraboyina, Sammera Jagirdar and Philip C Philip, ‘A Critique Of Transgender Persons (Protection Of Rights) Bill, 2019’ (Feminism in India, 5 August 2019) <https://feminisminindia.com/2019/08/05/critique-transgender-persons-protection-of-rights-bill-2019/> accessed 12 December 2023 (the right to gender identity is gatekept by the government through the District Magistrate).
122 X v NCT Delhi (n 1) [74].
123 ibid.
124 Shraddha Chaudhary, ‘Decriminalising Sexual Contact with Minors under POCSO? Notes for a Conversation’ (The P39A Criminal Law Blog, 26 November 2021) <https://p39ablog.com/2021/11/changedecriminalisingchangechangedecriminalizingchange-sexual-contact-with-minors-under-pocso-notes-for-a-conversation/> accessed 12 December 2023 (the blogpost talks about how sexual contact with minors is an over-criminalized subject).
125 Protection of Children from Sexual Offences Act 2012, s 2(d) read with ss 4, 6, 8, 10, 12, 14 and 15.
126 X v NCT Delhi (n 1) [81].
127 Joshi, ‘Indian Adolescent Sexuality: Sexual Knowledge, Attitudes, and Behaviours Among Urban Youth’ [2010] 55(3) Psychological Studies 181, 182; Shelah S. Bloom, Amy Ong Tsui, Marya Plotkin and Sarah Basset, ‘What Husbands in Northern India know about Reproductive Health: Correlates of Knowledge about Pregnancy and Maternal and Sexual Health’ [2000] 32(2) Journal of Biosocial Science 237; Vineet Kaur Ahuja, Siriesha Pattnaik, Gurcharandeep and others, ‘Perceptions and Preferences Regarding Sex and Contraception amongst Adolescents’ [2019] 8(1) Journal of Family Medicine and Primary Care 3350, 3352.
128 ibid [83]; Centre for Child and the Law, National Law School of India University, Bangalore, “An Analysis of Mandatory Reporting under the POCSO Act and its Implications on the Rights of Children” (15 June 2018) <https://feministlawarchives.pldindia.org/wp-content/uploads/Mandatory-Reporting-Paper-CCL-NLSIU.pdf> accessed 12 December 2023; Alok Prasanna Kumar, ‘Mandatory Reporting under POCSO’ [2022] 57(38) Economic and Political Weekly 10.
129 POCSO, s 19(1).
130 Stuart P Green, Criminalizing Sex: A Unified Liberal Theory (OUP 2020) 21–22.
131 Chaudhary, ‘Decriminalising Sexual Contact with Minors under POCSO?’ (n 124).