seeking appropriate directions and remedies for further clarification and resolution on the interpretation of Section 2(d). the petitioners appealed to the Supreme Court of India
No Acts & Articles mentioned in this case
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.12171219 OF 2017
[Arising out of S.L.P. (Crl.) Nos. 26402642 of 2016]
Ms. Eera
Through Dr. Manjula Krippendorf ... Appellant(s)
Versus
State (Govt. of NCT of Delhi) & Anr. …Respondent(s)
J U D G M E N T
Dipak Misra, J.
Leave granted.
2.The pivotal issue that emanates for consideration in
these appeals, by special leave, pertains to interpretation
of Section 2(d) of the Protection of Children from Sexual
Offences Act, 2012 (for short, “the POCSO Act”), and the
primary argument of the learned counsel for the
appellant is that the definition in Section 2(d) that
defines “child” to mean any person below the age of 18
years, should engulf and embrace, in its connotative
expanse, the “mental age” of a person or the age
determined by the prevalent science pertaining to
psychiatry so that a mentally retarded person or an
extremely intellectually challenged person who even has
crossed the biological age of 18 years can be included
within the holistic conception of the term “child”.
3.Before I note the submissions of Ms. Aishwarya
Bhati, learned counsel for the appellant, the supporting
submissions by the respondent State and the
proponements in oppugnation by the learned senior
counsel who was engaged on behalf of the accused
respondent No. 2 by the Court as the said respondent
chose not to enter appearance, few facts are essential to
be noted. The appellant is represented by her mother on
the foundation that she is suffering from Cerebral Palasy
(R. Hemiparesis) and, therefore, though she is
biologically 38 years of age, yet her mental age is
approximately 6 to 8 years. In this backdrop, it is
contended that the trial has to be held by the Special
Court established under the POCSO Act. As the facts
2
would unroll, the mother of the appellant had lodged FIR
No. 197 of 2014 at Police Station Defence Colony, New
Delhi against the respondent No. 2 alleging that he had
committed rape on her mentally retarded daughter and
on the basis of the FIR, investigation was carried on and
eventually charge sheet was laid for the offence
punishable under Section 376(2)(l) of the Indian Penal
Code (IPC) before the concerned Judicial Magistrate,
who, in turn, committed the case to the Court of the
learned Assistant Special Judge/Special Fast Track
Court, Saket, New Delhi for trial. Many a fact has been
enumerated which need not be stated in detail. Suffice it
to mention that the trial commenced and when the
question of examination of the appellant came up,
various aspects such as camera trial, videography of the
trial, absence of congenial atmosphere and many other
issues emerged. As the mother of the appellant felt that
the trial court was not able to address the same, the
victim through her mother, filed a petition under Section
482 of the Code of Criminal Procedure (CrPC) before the
High Court of Delhi praying, inter alia, that the matter
3
should be transferred to the Special Court under the
POCSO Act as the functional age of the prosecutrix is
hardly around 6 to 8 years and there is necessity for trial
to be conducted in a most congenial, friendly and
comfortable atmosphere and the proceeding should be
videographed. The High Court vide order dated
15.06.2015 issued directions for making necessary
arrangements for videography of the proceeding as the
prosecutrix mainly communicates through gestures. The
order passed in that regard read as follows:
“Vide order dated 15
th
September, 2014,
the learned ASJ, Special Fast Track Court,
Saket had directed that the prosecutrix who is
a physically and mentally challenged girl
suffering from cerebral palsy will be provided a
special educator/interpreter and necessary
arrangements be made for videographing the
incamera trial at the time of recording of the
statement of the prosecutrix. When the
evidence of the prosecutrix was sought to be
recorded on 15
th
May, 2015 the learned Judge
noted that the concerned officer of the
vulnerable witness Court complex submitted
that the videographing of the proceedings is
not permissible. The learned Additional
Sessions Judge has sought necessary
directions regarding videography from the
learned Sessions Judge (South) in this regard
and has listed the matter for 27
th
May, 2015. It
is also informed by the learned APP on
instructions from the investigating officer that
4
two doctors of AIIMS have been contacted who
will be present on the date when the evidence
of the prosecutrix has to be recorded.
Learned counsel for the petitioner states
that the prosecutrix is terrified by the
presence of males and it would be thus
appropriate if female doctors/interpreters are
available at the time of the evidence of the
prosecutrix. Learned APP will file a status
report in this regard before the next date.
In the meanwhile the learned Sessions
Judge (South District) will make necessary
arrangements for videography of the
proceedings as the prosecutrix mostly
communicates through gestures.”
4.The matter was finally disposed of vide order dated
29.06.2015 and the appellant felt aggrieved as the two
main prayers, namely, (i) transfer of the case to the
Special Court established under the POCSO Act as the
functional age of the prosecutrix is 6 to 8 years and (ii)
the transfer of the case from P.S. Defence Colony to the
Crime Branch for proper supervisional investigation were
not allowed. As the impugned order would show, the
High Court directed that the case should be assigned to
a trial court presided over by a lady Judge in Saket
Court.
5
5.When the matter was listed on 01.04.2016, it was
contended by Ms. Bhati, learned counsel for the
appellant that the prosecutrix has been suffering from a
devastating mental and physical disorder since her birth
and though she is biologically aged about 38 years, she
has not mentally grown beyond six years. In support of
her stand, a certificate of the neurophysician and the
psychologist of AIIMS, New Delhi was filed. She had
referred to Section 28 of the POCSO Act which deals with
Special Courts. She had also drawn attention of the
Court to Sections 24 to 27 of the POCSO Act to highlight
that there is a special procedure for recording statement
of the child and, therefore, when medical evidence had
established the mental age, the victim’s biological age
should not be the governing yardstick but she should be
considered as a child because she is intellectually
challenged and mentally retarded under the POCSO Act.
6.As the respondent No. 2 did not appear, the Court
appointed Mr. Sanjay R. Hegde, learned senior counsel,
as Amicus Curiae to argue and put forth the points on
behalf of respondent No. 2. On behalf of respondent
6
No.1, that is, State (Government of NCT of Delhi),
Mr. P.K. Dey and Mr. Siddharth Dave, learned counsel
assisted the Court.
7. After the matter was heard, the judgment was
reserved and after some time, an office note was
circulated that the sole accused, the respondent No. 2,
had died during the pendency of the proceeding. When
the matter was listed again because of the subsequent
event, it was contended by Ms. Bhati appearing for the
appellant that under the POCSO Act and the Rules
framed thereunder, the victim would be entitled to get
compensation and the procedure would be different.
That apart, she also submitted that after the death of the
accused, the grievance still remains and as the
procedure for grant of compensation is different, this
Court may deal with the principal issue. And, I have
thought it appropriate to address the same.
8.Learned counsel for the appellant submits that
Section 2(d) that defines “child” to mean any person
below the age of eighteen years should not be conferred a
restricted meaning to convey that the words “eighteen
7
years” are singularly and exclusively associated with the
biological or chronological age and has nothing to do
with the real concept or conception of “age”. Elaborating
the argument, she would contend that “child”, as defined
under Article 1 of the United Nations Convention on the
Rights of Children, is to mean “every human being below
the age of 18 years unless under the law applicable,
majority is attained earlier”.
9.It is urged by her that the principle of purposive
construction is required to be adopted keeping in view
the intrinsic perspective of POCSO Act and construction
should be placed on the word “age” to compositely
include biological and mental age so that the protective
umbrella meant and recognized for the child under the
law to avoid abuse and exploitation is achieved. It is
contended by her that likes of the appellant who suffer
from mental disabilities or are mentally challenged are
unable to keep pace with biological age and their mental
growth and understanding is arrested and unless they
get the protection of law that the legislature has
conceived, it would be an anathema that the law that has
8
been brought in to protect the class, that is, child, leaves
out a part of it though they are worse than the children
of the age that is defined under the POCSO Act.
Elaborating further, she would submit that a mentally
retarded person may have the body mass, weight and
height which will be matching the chronological age or
biological age of 30 years, but in reality behaves like a
child of 8 to 10 years, for the mental age, as it is called,
stops progressing. She has drawn a comparison between
various provisions of the IPC where the legislature has
recognized a person of unsound mind to be on the same
pedestal as child which indicates that IPC prescribes
protection on the basis of maturity of understanding, to
the persons suffering from unsoundness of mind.
Emphasis is on departure from the chronological age by
the legislature by laying stress on capacity to understand
the nature and consequence of the act. She has also
referred to Chapter XXV of the CrPC that enumerates the
provisions as to the accused persons of unsound mind.
10.Learned counsel would contend that dignity of a
child is of extreme significance and this Court has
9
eloquently accentuated on the sustenance of such
dignity. To buttress her submission, she has relied upon
Reena Banerjee & another v. Govt. (NCT of Delhi) and
others
1
, Mofil Khan & another v. State of
Jharkhand
2
, Suchita Srivastava & another v.
Chandigarh Administration
3
, and Tulshidas
Kanolkar v. State of Goa
4
.
11.It is propounded by her that to read mental age
with biological age will not cause any violence to Section
2(d) of POCSO Act but on the contrary, it would be in
accord with the context of the scheme of the POCSO Act
and also inject life to the words which constitute the
fulcrum of the spirit of the legislation that is meant to
protect the victims. The legislature has used the word
“child” and restricted it to age of 18 years, but when a
mentally retarded child is incapable of protest and
suffers from inadequacy to understand, chronological age
should not be the guiding factor or laser beam but the
real mental age, for the cherished purpose of the POCSO
1
(2015) 11 SCC 725
2
(2015) 1 SCC 67
3
(2009) 9 SCC 1
4
(2003) 8 SCC 590
10
Act is to give protection to the child and check sexual
abuse of a child. A literal construction, according to the
learned counsel, would defeat the intendment of the
legislature. For the aforesaid purpose, she has
commended us to the authorities in Bharat Singh v.
Management of New Delhi Tuberculosis Centre, New
Delhi and others
5
, Githa Hariharan (Ms.) and
another v. Reserve Bank of India and another
6
,
Union of India v. Prabhakaran Vijaya Kumar and
others
7
, Regional Provident Fund Commissioner v.
Hooghly Mills Company Limited and others
8
,
Bangalore Turf Club Limited v. Regional Director,
Employees’ State Insurance Corporation
9
.
12.Mr. Dey, learned counsel appearing for the first
respondent – State, submits that POCSO Act has been
introduced with a view to provide protection of the
children from the offences of sexual assault, sexual
harassment and abuse with due regard to safeguard the
5
(1986) 2 SCC 614
6
(1999) 2 SCC 228
7
(2008) 9 SCC 527
8
(2012) 2 SCC 489
9
(2014) 9 SCC 657
11
interest and well being of the children at every stage of
judicial proceeding including children friendly procedure,
recording of evidence and establishment of Special
Courts for the speedy trial and, therefore, a person who
is mentally challenged/retarded is required to be brought
within the definition of a child so that the life is ignited to
the piece of legislation. Learned counsel would submit
that when such a person is incapable of understanding
what is happening to her, she is equal to a child and
when such an interpretation is placed, it serves the basic
purpose of behind the Act that the legislature has
intended to achieve. It is his further submission that
there is a distinction between two terms, namely, “age”
and “years”, for “age” signifies mental or
biological/physical age whereas “years” refer to
chronology and hence, it is possible to interpret the word
“age” in a particular provision to mean mental age
without offending the term of the word “year” which
means year and “year” has been defined in the General
Clauses Act, 1897 as period of 365 days. He has referred
to the Juvenile Justice (Care and Protection of Children)
12
Act, 2015 to highlight that the legislative intention there
is explicit with regard to mental capacity of a person
which would have a relevant factor to determine the
forum of trial. It is further contended by him that if the
trial is held in case of mental retarded person whose
biological age is more than 18 years by the Special Court
as provided under the POCSO Act, the accused is no way
affected because the punishment for the offence remains
the same even if the trial is held by the Court of Session
under the CrPC. Learned counsel in his written note of
submissions has placed reliance upon Sheikh Gulfan &
others v. Sanat Kumar Ganguli
10
, Yudhishter v.
Ashok Kumar
11
, Pratap Singh v. State of Jharkhand
and another
12
, Directorate of Enforcement v. Deepak
Mahajan and another
13
.
13.Mr. Dave, while supporting the stand of Mr. Dey
has commended us to the decision in Deepak Mahajan
(supra).
10
AIR 1965 SC 1839
11
(1987) 1 SCC 204
12
(2005) 3 SCC 551
13
(1994) 3 SCC 440
13
14.Mr. Hegde, learned senior counsel, who has been
engaged by the Court to assist on behalf of respondent
No. 2, has referred to Article 1 of the United Nations
Convention on the Rights of the Child which has been
acceded to by India on 11.12.1992. Relying on the
definition in the Black’s Law Dictionary and the
Advanced Law Lexicon by P. Ramanatha Aiyar, 3
rd
Edn.
2005 p. 175, learned senior counsel would submit that
there is distinction between mental age and chronological
age. Had it been the intention of the Parliament not to
make such a distinction, it would have included within
the protective ambit of the definition pertaining to adults
whose mental age is less than 18 years. It is urged by
him that when the language of the dictionary clause is
clear and unambiguous, it should be given its ordinary
literal meaning. It is further argued by him that wherever
the legislature has intended to refer to other definition of
“age” including mental age, it has specifically made like
the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015 and, therefore, in the
absence of a specific provision in the POCSO Act, the
14
Court ought to adopt the actual grammatical meaning
and for the said purpose, he has drawn inspiration from
Bennion on Statutory Interpretation, 5
th
Edn. p.825.
He would put forth the stand that if the term “age” is
interpreted to mean “mental age”, it would lead to
ambiguity, chaos and unwarranted delay in the
proceedings and also it would have the effect potentiality
to derail the trial and defeat the purpose of the Act, for
the informant will have the option to venture on the
correctness of the mental age. Learned senior counsel
would further urge that various Courts in other parts of
the world have treated the child keeping in view the
chronological age unless the mental age has been
specifically considered for inclusion by the legislature.
Mr. Hegde, in his written notes of submission, has
reproduced passages from R. v. Sharpe
14
[British
Columbia Court of Appeal], R v. Cockerton
15
[Kings
Bench] and OggMoss v. R
16
[Supreme Court of Canada].
According to him, when the definition of “child” in
14
BCCA 1999 416
15
[1901] 1 KB 726
16
[1984] 2 SCR 173
15
Section 2(d) is plain and intelligible, the Court ought not
add or read words into the same regard being had to the
pronouncements in P.K. Unni v. Nirmala Industries
and others
17
and Lt. Col. Prithi Pal Singh Bedi etc. v.
Union of India and others
18
.
15.Learned senior counsel would submit that if mental
age is read into the definition of the “child”, it will be
against the manifest intention of the legislature. As an
instance, he has referred to Section 5(k) of the POCSO
Act which alludes to child’s mental or physical disability
in the context of aggravated penetrated sexual assault.
He has submitted that if the term “age” is interpreted to
engulf mental and biological age, the scheme of the
POCSO Act shall be defeated and it will lead to
inconsistencies. For the said purpose, he has referred to
the concept of “mental age” in respect of which the
scientific views and methods vary. The eventual stand of
the learned senior counsel is that mental age with a
proximate figure can never be constant and is likely to
17
(1990) 2 SCC 378
18
(1982) 3 SCC 140 : [1983] 1 SCR 393
16
vary with time and surrounding circumstances and,
therefore, interpreting the word “age” falling under the
definition of “child” to include mental age also would
breach the settled principles of criminal jurisprudence
and usher in uncertainty.
16.Having noted the rivalised submissions, I shall
presently focus on the preamble, the Statement of
Objects and Reasons and the essential features of the
POCSO Act. The said piece of legislation came into effect
on 19.6.2012 and has a long Preamble. The relevant
parts of the Statement of Objects and Reasons of the
POCSO Act are as follows:
“1.…..
2.…..
3.The date collected by the National Crime
Records Bureau shows that there has been
increase in cases of sexual offences against
children. This is corroborated by the ‘Study on
Child Abuse: India 2007’ conducted by the
Ministry of Women and Child Development.
Moreover, sexual offences against children are
not adequately addressed by the existing laws.
A large number of such offences are neither
specifically provided for nor are they
adequately penalized. The interests of the
child, both as a victim as well as a witness,
need to be protected. It is felt that offences
17
against children need to be defined explicitly
and countered through commensurate
penalties as an effective deterrence.
4.It is, therefore, proposed to enact a self
contained comprehensive legislation inter alia
to provide for protection of children from the
offences of sexual assault, sexual harassment
and pornography with due regard for
safeguarding the interest and well being of the
child at every stage of the judicial process
incorporating childfriendly procedures for
reporting, recording of evidence, investigation
and trial of offences and provision for
establishment of Special Courts for speedy
trial of such offences.
5.…..
6.…..
7.…..”
17.The Preamble of the POCSO Act reads thus:
“An Act to protect children from offences of
sexual assault, sexual harassment and
pornography and provide for establishment of
Special Courts for trial of such offences and for
matters connected therewith or incidental
thereto.
WHEREAS clause (3) of article 15 of the
Constitution, inter alia, empowers the State to
make special provisions for children;
AND WHEREAS, the Government of India has
acceded on the 11th December, 1992 to the
Convention on the Rights of the Child, adopted
by the General Assembly of the United
Nations, which has prescribed a set of
18
standards to be followed by all State parties in
securing the best interests of the child;
AND WHEREAS it is necessary for the proper
development of the child that his or her right
to privacy and confidentiality be protected and
respected by every person by all means and
through all stages of a judicial process
involving the child;
AND WHEREAS it is imperative that the law
operates in a manner that the best interest
and well being of the child are regarded as
being of paramount importance at every stage,
to ensure the healthy physical, emotional,
intellectual and social development of the
child;
AND WHEREAS the State parties to the
Convention on the Rights of the Child are
required to undertake all appropriate national,
bilateral and multilateral measures to
prevent –
a. the inducement or coercion of a child to
engage in any unlawful sexual activity;
b. the exploitative use of children in
prostitution or other unlawful sexual practices;
c. the exploitative use of children in
pornographic performances and materials;
AND WHEREAS sexual exploitation and sexual
abuse of children are heinous crimes and need
to be effectively addressed”.
18.The purpose of referring to the Statement of Objects
and Reasons and the Preamble of the POCSO Act is to
19
appreciate that the very purpose of bringing a legislation
of the present nature is to protect the children from the
sexual assault, harassment and exploitation, and to
secure the best interest of the child. On an avid and
diligent discernment of the preamble, it is manifest that
it recognizes the necessity of the right to privacy and
confidentiality of a child to be protected and respected by
every person by all means and through all stages of a
judicial process involving the child. Best interest and
well being are regarded as being of paramount
importance at every stage to ensure the healthy physical,
emotional, intellectual and social development of the
child. There is also a stipulation that sexual exploitation
and sexual abuse are heinous offences and need to be
effectively addressed. The statement of objects and
reasons provides regard being had to the constitutional
mandate, to direct its policy towards securing that the
tender age of children is not abused and their childhood
is protected against exploitation and they are given
facilities to develop in a healthy manner and in
conditions of freedom and dignity. There is also a
20
mention which is quite significant that interest of the
child, both as a victim as well as a witness, needs to be
protected. The stress is on providing childfriendly
procedure. Dignity of the child has been laid immense
emphasis in the scheme of legislation. Protection and
interest occupy the seminal place in the text of the
POCSO Act.
19.Having analysed the Statement of Objects and
Reasons and the Preamble of the POCSO Act, it is
necessary to appreciate what precisely the POCSO Act
projects.
20.Chapter II of the POCSO Act deals with sexual
offences against children. Part A of the said Chapter
provides for penetrative sexual assault and punishment
therefor. Section 3 stipulates what is the penetrative
sexual assault and Section 4 provides punishment for
such offence. Part B of the said Chapter deals with
aggravated penetrative sexual assault and punishment
therefor. Section 5 copiously deals with what can
constitute aggravated penetration sexual assault. It is
extremely significant to note that Section 5(a)
21
enumerates number of circumstances where the offence
becomes aggravated one. It includes in its ambit various
situations and also certain categories of persons. The
provision is quite elaborate. Section 5(k) to which my
attention has been drawn reads thus:
“(k) whoever, taking advantage of a child's mental
or physical disability, commits penetrative sexual
assault on the child;”
The aforesaid provision, as is evident, lays stress on
the mental disability of the child.
21.Part C of Chapter II deals with sexual assault and
punishment therefor. Section 7 lays down about the
sexual assault. Part D deals with aggravated sexual
assault and punishment therefor. Section 9 deals with
aggravated sexual assault which is akin to Section 5.
Part E deals with sexual harassment and punishment
therefor. The said harassment lays down various acts
which will amount to sexual harassment.
22.On a reading of the aforesaid Chapters, it is quite
manifest and limpid that the legislature has intended to
protect the child from any kind of sexual assault and
harassment. It has also laid stress upon the mental and
22
physical disability of the child. The child, as per the
definition, is the principal protagonist and the POCSO
Act protects the child from any sexual act and also takes
into consideration his mental disability. Thus, the
legislature was alive to the condition of mental disability.
Chapter III of the POCSO Act deals with using child for
pornographic purposes and punishment therefor.
Chapter IV deals with abetment of and attempt to
commit an offence. Chapter V deals with the procedure
for reporting of cases and Chapter VI provides for
procedure for recording statement of the child. Sections
24 to 27, which have been pressed into service by
Ms. Bhati, relate to recording of statement of a child;
recording of statement of a child by Magistrate;
additional provisions regarding statement to be recorded
and medical examination of a child.
23.Section 27 stipulates that medical examination of a
child in respect of whom any offence has been committed
under the Act is to be conducted in accordance with
Section 164A of the CrPC. It is also significant to note
that the said examination has to be done
23
notwithstanding an FIR or complaint has not been
registered for the offences under the POCSO Act. I shall
refer to Section 164A CrPC at a later stage. Section 28 of
the POCSO Act deals with Special Courts. Section 31
provides that the CrPC shall apply to the proceedings
before a Special Court. Section 32 requires the State
Government to appoint a Special Public Prosecutor for
every Special Court for conducting the cases under the
provisions of the POCSO Act. Chapter VIII deals with the
procedure and powers of the Special Courts and
recording of evidence. Section 35 provides for a period
for recording of evidence of child and disposal of case.
Section 36 stipulates that child should not see the
accused at the time of testifying. The said provision
protects the child and casts an obligation on the Special
Court to see that the child, in no way, is exposed to the
accused at the time of recording of evidence. Recording
of the statement of a child is through video conferencing
or by utilizing single visibility mirrors or curtains or any
other device is permissible. This provision has its own
sanctity. Section 37 deals with trials to be conducted in
24
camera and Section 38 provides assistance of an
interpreter or expert while recording evidence of a child.
Section 42A lays the postulate that POCSO Act is not in
derogation of the provisions of any other law.
24.Section 45 empowers the Central Government to
make rules for carrying out the purposes of the POCSO
Act. In exercise of powers conferred under Section 45, a
set of rules, namely, the Protection of Children from
Sexual Offences Rules, 2012 (‘2012 Rules’) has been
framed and the said Rules have come into force on
14.11.2012. Rule 7 which deals with compensation reads
as under:
“7. Compensation (1) The Special Court
may, in appropriate cases, on its own or on an
application filed by or on behalf of the child,
pass an order for interim compensation to
meet the immediate needs of the child for relief
or rehabilitation at any stage after registration
of the First Information Report. Such interim
compensation paid to the child shall be
adjusted against the final compensation, if
any.
(2) The Special Court may, on its own or on
an application filed by or on behalf of the
victim, recommend the award of compensation
where the accused is convicted, or where the
case ends in acquittal or discharge, or the
accused is not traced or identified, and in the
25
opinion of the Special Court the child has
suffered loss or injury as a result of that
offence.
(3) Where the Special Court, under subsection
(8) of section 33 of the Act read with sub
sections (2) and (3) of section 357A of the Code
of Criminal Procedure, makes a direction for
the award of compensation to the victim, it
shall take into account all relevant factors
relating to the loss or injury caused to the
victim, including the following:
(i) type of abuse, gravity of the offence and the
severity of the mental or physical harm or
injury suffered by the child;
(ii) the expenditure incurred or likely to be
incurred on his medical treatment for physical
and/or mental health;
(iii) loss of educational opportunity as a
consequence of the offence, including absence
from school due to mental trauma, bodily
injury, medical treatment, investigation and
trial of the offence, or any other reason;
(iv) loss of employment as a result of the
offence, including absence from place of
employment due to mental trauma, bodily
injury, medical treatment, investigation and
trial of the offence, or any other reason;
(v) the relationship of the child to the
offender, if any;
(vi) whether the abuse was a single isolated
incidence or whether the abuse took place over
a period of time;
26
(vii) whether the child became pregnant as a
result of the offence;
(viii) whether the child contracted a sexually
transmitted disease (STD) as a result of the
offence;
(ix) whether the child contracted human
immunodeficiency virus (HIV) as a result of the
offence;
(x) any disability suffered by the child as a
result of the offence;
(xi) financial condition of the child against
whom the offence has been committed so as to
determine his need for rehabilitation;
(xii) any other factor that the Special Court
may consider to be relevant.
(4) The compensation awarded by the Special
Court is to be paid by the State Government
from the Victims Compensation Fund or other
scheme or fund established by it for the
purposes of compensating and rehabilitating
victims under section 357A of the Code of
Criminal Procedure or any other laws for the
time being in force, or, where such fund or
scheme does not exist, by the State
Government.
(5) The State Government shall pay the
compensation ordered by the Special Court
within 30 days of receipt of such order.
(6) Nothing in these rules shall prevent a child
or his parent or guardian or any other person
in whom the child has trust and confidence
from submitting an application for seeking
27
relief under any other rules or scheme of the
Central Government or State Government.”
25.I have extracted the relevant provisions of the
POCSO Act and referred to the schematic content in its
perspective context. The enthusiastic submissions of
Ms. Bhati and the submission advanced in support by
Mr. Dey are meant to urge the Court to adopt the
purposive approach regard being had to the centripodal
interest of the “child” that can, in its connotative
contextual expanse, include a person who has not
mentally grown in age, though may have felt the sketchy
shadow of biological years. Their accent is not only on
the provisions of the Act but also on the methodology of
computation under the POCSO Act.
26.Presently, I shall refer to certain authorities as
regards the purposive interpretations and its contours,
for learned counsel for the appellant would like us to
perceive the provision through the said magnified glass
using different lens. In Cabell v. Markhan
19
Learned
19
148 F 2d 737 (2d Cir 1945)
28
Hand, J. articulated the merits of purposive
interpretation:
“Of course it is true that the words used, even
in their literal sense, are the primary, and
ordinarily the most reliable, source of
interpreting the meaning of any writing: be it a
statute, a contract, or anything else. But it is
one of the surest indexes of a mature and
developed jurisprudence not to make a fortress
out of the dictionary; but to remember that
statutes always have some purpose or object
to accomplish, whose sympathetic and
imaginative discovery is the surest guide to
their meaning.”
27. The House of Lords in Regina (Quintavalle) v.
Secretary of State for Health
20
observed:
“The pendulum has swung towards purposive
methods of construction. This change was not
initiated by the teleological approach of
European Community jurisprudence, and the
influence of European legal culture generally,
but it has been accelerated by European ideas:
see, however, a classic early statement of the
purposive approach by Lord Blackburn in
River Wear Commissioners v. Adamson
21
. In
any event, nowadays the shift towards
purposive interpretation is not in doubt. The
qualification is that the degree of liberality
permitted is influenced by the context, e.g.
social welfare legislation and tax statutes may
have to be approached somewhat differently.
…”
20
[2003] UKHL 13 : [2003] 2 AC 687 : [2003] 2 WLR 692 (HL)
21
(1877) LR 2 AC 743 at p. 763 (HL)
29
28. The above expansion of purposive interpretation
has been approvingly quoted by the majority in Abhiram
Singh v. C.D. Commachen (dead) by legal
representatives and others
22
and that is why Section
123(3) of the Representation of the People Act, 1951 has
been construed keeping in view electoratecentric
interpretation rather than candidatecentric one. The
submission is that the purposive interpretation has
become the elan vital of statutory interpretation because
of progressive social climate and Judges’ statesmanship.
Krishna Iyer, J., in his inimitable style, had said “when
legislative purpose or intention is lost, then the process
of interpretation is like to adorn the skin, and to miss the
soul”. A court has to be progressive in its thought and
should follow the path of construction that
comprehensively meets the legislative intention. If a
Judge gets stuck with the idea that construction is the
safest, the enactment is not fructified, the purpose is
missed and the soul is dismissed. A narrow construction
22
(2017) 2 SCC 629
30
of a concept invites a hazard whereas a broad exposition
enlarges the sweep and achieves the statutory purpose.
These are certain abstractions. It will apply in a different
manner in different statutes, like tax law, penal law,
social welfare legislation, excise law, election law, etc.
That apart, the law intends to remedy a mischief. It also
sets goal and has a remedial intent. It also states certain
things which clearly mean what has been said. In that
case, there is no room for the Judge and solely because
he is a constructionist Judge, cannot possess such tool
to fly in the realm of fanciful area and confer a different
meaning. His ability to create in the name of judicial
statesmanship is not limitless. It has boundaries. He
cannot afford to romance all the time with the science of
interpretation. Keeping these aspects in mind, I shall
presently refer to some authorities where purposive
construction has been adopted and where it has not
been taken recourse to and the cardinal principle for the
same.
31
29.In Gurmej Singh v. Pratap Singh Kairon
23
, the
Constitution Bench was dealing with the true
construction of Section 123(7) of the Representation of
the People Act, 1951. The question that arose before the
Constitution Bench was whether a Lambardar, a person
in the service of Government or covered by any of the
clauses of Section 123(7) of the 1951 Act. The Election
Tribunal had held that Lambardar was a revenue officer.
The High Court set at naught the finding recorded by the
Election Tribunal by opining that Lambardars though
appointed by the Government for the purpose of
collecting the land revenue and receiving a statutory
percentage of the sums realized by them as their
remuneration for so doing, yet they were included along
with village accountants who are called Patwaris in State
and hence, they are clearly excluded by the provisions of
clause (f). It was contended before this Court that
Lambardar is a revenue officer and village accountant
within the meaning of clause (f) of subsection (7) of
Section 123 of the 1951 Act. While dealing with the
23
AIR 1960 SC 122
32
submission, the Court held that it is an elementary rule
that construction of a section is to be made of all the
parts together and not of one part only by itself and that
phrases are to be construed according to the rules of
grammar. Proceeding further, the Court observed that:
“The words “revenue officers”, in whatever
sense they are used, cannot obviously
comprehend officers who are not revenue
officers, and in that situation there is no
necessity to exclude such officers from the
group of revenue officers. The Legislative
device of exclusion is adopted only to exclude
a part from the whole, which, but for the
exclusion, continues to be part of it. This
interpretation must be rejected as it involves
the recognition of words which are
surplusage.”
The aforesaid analysis clearly shows that a section
has to be construed in entirety and not of one part only
and further there should be no attempt to recognize
words which are surplusage.
30.In State of Himachal Pradesh & another v.
Kailash Chand Mahajan & others
24
, the Court referred
to a passage from Francis Bennion’s Statutory
Interpretation (1984 edn.) which illustrates the
24
1992 Supp. (2) SCC 351
33
distinction between the legislative intention and the
purpose or object of the legislation. The said passage
reads as follows:
“The distinction between the purpose or object
of an enactment and the legislative intention
governing it is that the former relates to the
mischief to which the enactment is directed
and its remedy, while the latter relates to the
legal meaning of the enactment.”
31.After reproducing the same, the Court observed
that there is a great distinction between the two. While
the object of legislation is to provide a remedy for the
malady, on the contrary, the legislative intention relates
to the meaning from the exposition of the remedy as
enacted. The Court further ruled that for determining the
purpose of legislation, it is permissible to look into the
circumstances which were prevalent at that time when
the law was enacted and which necessitated the passing
of that enactment and for the limited purpose of
appreciating the background and the antecedent factual
matrix leading to the legislation, it is open to the court to
look into the ‘Statement of Objects and Reasons’ of the
34
Bill which accentuated the statement to provide a
remedy for the then existing malady.
32.It is worthy to state here that where a purposive
construction is conceived of or the said principle is
sought to be applied, the context becomes an important
and influential aspect and when one tries to understand
the legislative intention, the meaning from the exposition
of the purpose or the effort to have the remedy through
the enactment has to be appositely perceived.
33.In R.M.D. Chamarbaugwalla and another v.
Union of India and another
25
, Sections 4 and 5 of the
Prize Competitions Act (42 of 1955) were impugned as
unconstitutional. The object of the said legislation, as
stated in the preamble was “to provide for the control
and regulation of prize competitions.” Section 2(d) of the
said Act defined “prize competition” as meaning “any
competition (whether called a crossword prize
competition, a missingword prize competition, a picture
prize competition or by any other name), in which prizes
are offered for the solution of any puzzle based upon the
25
AIR 1957 SC 628
35
building up, arrangement, combination or permutation of
letters, words or figures.” The question arose whether
that applies to prize competition in which success
depends on a substantial degree of skill. It was
contended before the Court that the language employed
in Section 2(d) being clear and unambiguous, it was not
open to the Court to read into any limitations which are
not there by reference to other and extraneous
considerations. Dealing with the same, the Court
observed that when a question arises as to the
interpretation to be put on an enactment, what the Court
has to do is to ascertain “the intent of them that make
it”, and that must, of course, be gathered from the words
actually used in the statute. That, however, does not
mean that the decision should rest on a literal
interpretation of the words used in disregard of all other
materials. The Court further opined that “The literal
construction then”, says Maxwell on Interpretation of
Statutes, 10th Edn., p. 19, “has, in general, but prima
facie preference. To arrive at the real meaning, it is
always necessary to get an exact conception of the aim,
36
scope and object of the whole Act; to consider, according
to Lord Coke: (1) What was the law before the Act was
passed; (2) What was the mischief or defect for which the
law had not provided; (3) What remedy Parliament has
appointed; and (4) The reason of the remedy”. Turning to
the history of the legislation, various provisions of the
said Act and doctrine of severability, the Court came to
hold that it will not be questioned that competitions in
which success depends to a substantial extent on skill
and competitions in which it does not so depend, form
two distinct and separate categories. The difference
between the two classes of competitions is as clearcut as
that between commercial and wagering contracts. The
Court further held that whether the Parliament would
have enacted the law in question if it had known that it
would fail as regards competitions involving skill, there
can be no doubt, having regard to the history of the
legislation, as to what gives the answer. Nor does the
restriction of the impugned provisions to competitions of
a gambling character affect either the texture or the
colour of the Act; nor do the provisions require to be
37
touched and rewritten before they could be applied to
them. They will squarely apply to them on their own
terms and in their true spirit, and form a code complete
in themselves with reference to the subject. The
conclusion, the Court said, was that it was inescapable
that the impugned provisions, assuming that they apply
by virtue of the definition in Section 2(d) to all kinds of
competitions, were severable in their application to
competitions in which success did not depend upon any
substantial extent on skill.
34.The aforesaid authority has identified two clear cut
classes of prize competitions and ultimately applied the
doctrine of severance. The Court was not persuaded by
the laudable object that the Parliament intended to
control and regulate the prize competition but keeping in
view all the factors that can legitimately be taken into
account, interpreted the provision. Thus, the Court was
cautious and only tried to take into account what could
legitimately be taken into consideration.
38
35. In Commissioner of Incometax, Madhya
Pradesh v. Shrimati Sodra Devi
26
the Court ruled that
unless there is any such ambiguity it would not be open
to the Court to depart from the normal rule of
construction which is that the intention of the legislature
should be primarily gathered from the words which are
used. It is only when the words used are ambiguous that
they would stand to be examined and construed in the
light of surrounding circumstances and constitutional
principle and practice. For the said purpose, the Court
referred to the view of Lord Ashbourne in Nairn v.
University of St. Andrews
27
.
36.In the said case, the Court referred to the objects
and reasons of the IncomeTax Act, 1922 and turned to
Section 16(3) to understand the intention of the
legislature and stated thus:
“27. … If this background of the enactment of
Section 16(3) is borne in mind, there is no
room for any doubt that howsoever that
mischief was sought to be remedied by the
amending act, the only intention of the
Legislature in doing so was to include the
26
AIR 1957 SC 832
27
1909 AC 147
39
income derived by the wife or a minor child, in
the computation of the total income of the
male assessee, the husband or the father, as
the case may be, for the purpose of
assessment.
If that was the position, howsoever wide
the words “any individual” or “such individual”
as used in Section 16(3) and Section 16(3)(a)
may appear to be so as to include within their
connotation the male as well as the female of
the species taken by themselves, these words
in the context could only have been meant as
restricted to the male and not including the
female of the species. If these words are used
as referring only to the male of the species the
whole of the Section 16(3)(a) can be read
harmoniously in the manner above
comprehending within its scope all the four
cases specified in subclauses (i) to (iv) thereof
and so also Section 16(3)(b).
We are therefore of opinion that the
words “any individual” and “such individual”
occurring in Section 16(3) and Section 16(3)(a)
of the Act are restricted in their connotation to
mean only the male of the species, and do not
include the female of the species, even though
by a disjunctive reading of the expression “the
wife” or “a minor child” of “such individual” in
Section 16(3)(a) and the expression “by such
individual” for the benefit of his wife or a
minor child or both in Section 16(3)(b), it may
be possible in the particular instances of the
mothers being connected with the minor
children in the manner suggested by the
Revenue to include the mothers also within
the connotation of these words. Such
inclusion which involves different
interpretations of the words “any individual” or
40
“such individual” in the different contexts
could never have been intended by the
legislature and would in any event involve the
addition of the words “as the case may be”
which addition is not normally permissible in
the interpretation of a statute.”
37.Though the case related to the interpretation of a
taxing statute and not a social welfare legislation, yet the
Court kept in view the surrounding circumstances and
the reasons that led to the passing of the legislation and
further opined that the meaning sought to be placed by
the revenue could not be conceived of without addition of
words which is not normally permissible in the statute. It
had also ruled that the Court should avoid bringing a
particular category within the expansive connotation of
the words used.
38.In Sheikh Gulfan (supra), the controversy related
to construction of Section 30(c) of the Calcutta Thika
Tenancy Act, 1949. I need not state the facts of the case.
Section 30(c) of the said Act read as follows:
“Section 30: Nothing in this Act shall apply
to —
x x x x
41
(c) any land which is required for carrying out
any of the provisions of the Calcutta
Improvement Act, 1911.”
39.While interpreting the said provision, the Court
observed that the words used in the statute were simple,
but their construction was not easy and in that context,
it held, on a careful consideration and scrutiny of Section
30(c), the inevitable conclusion was that the words used
in Section 30(c) did not justify the conclusion that a
private landholder was intended to be equated with
Government or with the other special bodies or
authorities whose lands were exempted from the
operation of the Act by Section 30. The Court further
ruled that the legislature never intended that the
provisions of the Act should cease to apply to all lands
which were comprised in the scheme, because such a
provision would appear to be inconsistent with the
categories of cases covered by clauses (a) and (b) of
Section 41. Addressing on the issue of the intention of
the legislature in enacting Section 30(c), the Court held
that it would have been easy for the legislature to say
42
that lands comprised in the improvement schemes
should be exempted from the application of the Act.
Section 30 had provided for an exception to the
application of the beneficent provisions of the Act and it
would not be unreasonable to hold that even if Section
30(c) was reasonably capable of the construction, the
Court should prefer the alternative construction which is
also reasonably possible. In construing the provisions
which provide for exceptions to the applicability of
beneficent legislation, if two constructions are reasonably
possible, the Court would be justified in preferring that
construction which helps to carry out the beneficent
purpose of the Act and does not unduly expand the area
or the scope of the exception.
40. On a proper analysis of the aforesaid authority, it
is clear as crystal that when two constructions are
reasonably possible, preference should go to one which
helps to carry out the beneficent purpose of the Act; and
that apart, the said interpretation should not unduly
expand the scope of a provision. Thus, the Court has to
be careful and cautious while adopting an alternative
43
reasonable interpretation. The acceptability of the
alternative reasonable construction should be within the
permissible ambit of the Act. To elaborate, introduction
of theory of balance cannot be on thin air and in any
case, the Courts, bent with the idea to engulf a concept
within the statutory parameters, should not pave the
path of expansion that the provision by so stretch of
examination envisages.
41.In Pratap Singh (supra), the Constitution Bench
was required to resolve the conflicting views between
Arnit Das v. State of Bihar
28
and Umesh Chandra v.
State of Rajasthan
29
and in that context, the issue
before the larger Bench was whether the date of
occurrence will be the reckoning date for determining the
age of the alleged offender as juvenile offender or the date
when he is produced in the court/competent authority
under the Juvenile Justice Act, 1986. The Court
adverted to Section 2 of the said Act that dealt with
presumption and determination of age, and Section 32
28
(2000) 5 SCC 488
29
(1982) 2 SCC 202
44
that provided presumption and determination of age.
Referring to the said Section, it was contended that the
word “is” used in two places of the Section and that the
word “is” suggests that for determination of age of
juvenile the date of production would be the reckoning
date as the inquiry with regard to his age begins from the
date he is brought before the court and not otherwise.
The Court held that the word “is” employed in Section 32
is referable to a juvenile who is said to have committed
an offence on the date of the occurrence. To arrive at the
said conclusion, the Court ruled that the legislative
intendment underlying Sections 3 and 26 read with the
preamble, aims and objects of the Act is clearly
discernible and a conjoint reading of the sections,
preamble, aims and objects of the Act leaves no manner
of doubt that the legislature intended to provide
protection, treatment, development and rehabilitation of
neglected or delinquent juveniles and for the
adjudication thereof. It further proceeded to say that the
whole object of the Act is to provide for the care,
protection, treatment, development and rehabilitation of
45
juveniles and the Act being a benevolent legislation, an
interpretation must be given which would advance the
cause of the legislation, that is, to give benefit to the
juveniles.
42.This decision has to be carefully understood. It
dissected the provision from which it was discernible
that the age of the juvenile is the date of occurrence and
the said construction is in consonance with the
legislative objective. There is neither abnormally
stretched interpretation nor the subject of the Act is read
out of context. Thus, the context and the exposition of
intention of words in the schematic backdrop struck a
harmonious bond.
43. In Shankar Kisanrao Khade v. State of
Maharashtra
30
, the Court, taking into consideration the
conduct of the police for not registering a case under
Section 377 IPC against the accused, the agony
undergone by a child of 11 years with moderate
intellectual disability, nonreporting of offence of rape
committed on her after having witnessed the incident
30
(2013) 5 SCC 546
46
either to the local police or to the Juvenile Justice Board,
gave certain directions for compliance in future which
are necessary to protect the children from such sexual
abuses. The Court ruled that it has a duty to do so
because the Court has guardianship over minor children,
especially with regard to the children having intellectual
disability, since they are suffering from legal disability.
44.I may hasten to state here that observations and
directions given in the said case are absolutely within the
permissible limits of Juvenile Justice Act, 2000 and as
well as CrPC. Accentuation on duty and role of the
Court in the said case do not throw any laser beam or
show the guiding principle for interpreting the definition
of the word “child” as used in Section 2(d) of the POCSO
Act.
45. In Chandra Mohan v. State of Uttar Pradesh
and others
31
, Subba Rao, CJ, while speaking for the
Bench, had a pragmatic approach. The learned Chief
Justice held that if two constructions are possible then
the Court must adopt that which will ensure smooth and
31
AIR 1966 SC 1987
47
harmonious working of the Constitution and eschew the
other which will lead to absurdity or give rise to practical
inconvenience or make well established provisions of
existing law nugatory. I have referred to this decision as
it used the words, “give rise to practical inconvenience”.
46. In Deepak Mahajan (supra), the Court referred to a
passage from Maxwell on Interpretation of Statutes,
Tenth Edn., at p. 229 which is extracted below:
“Where the language of a statute, in its
ordinary meaning and grammatical
construction, leads to a manifest contradiction
of the apparent purpose of the enactment, or
to some inconvenience or absurdity, hardship
or injustice, presumably not intended, a
construction may be put upon it which
modifies the meaning of the words, and even
the structure of the sentence. … Where the
main object and intention of a statute are
clear, it must not be reduced to a nullity by
the draftsman’s unskilfulness or ignorance of
the law, except in a case of necessity, or the
absolute intractability of the language used.”
47.The Court also referred to various other decisions
and finally ruled that it is permissible for courts to have
functional approaches and look into the legislative
intention and sometimes it may be even necessary to go
behind the words and enactment and take other factors
48
into consideration to give effect to the legislative
intention and to the purpose and spirit of the enactment
so that no absurdity or practical inconvenience may
result and the legislative exercise and its scope and
object may not become futile.
48.As the aforesaid statement would show that the
Court has been inclined to adopt a functional approach
to arrive at the legislative intention. Needless to
emphasise, there has to be a necessity to do so.
49. In Reserve Bank of India v. Peerless General
Finance and Investment Co. Ltd. & others
32
,
Chinnappa Reddy, J., emphasizing on the importance of
the text and context in which every word is used in the
matter of interpretation of statutes, opined:
“Interpretation must depend on the text and
the context. They are the bases of
interpretation. One may well say if the text is
the texture, context is what gives the colour.
Neither can be ignored. Both are important.
That interpretation is best which makes the
textual interpretation match the contextual. A
statute is best interpreted when we know why
it was enacted. With this knowledge, the
statute must be read, first as a whole and then
section by section, clause by clause, phrase by
32
(1987) 1 SCC 424
49
phrase and word by word. If a statute is
looked at, in the context of its enactment, with
the glasses of the statutemaker, provided by
such context, its scheme, the sections,
clauses, phrases and words may take colour
and appear different than when the statute is
looked at without the glasses provided by the
context. With these glasses we must look at
the Act as a whole and discover what each
section, each clause, each phrase and each
word is meant and designed to say as to fit
into the scheme of the entire Act. No part of a
statute and no word of a statute can be
construed in isolation. Statutes have to be
construed so that every word has a place and
everything is in its place.”
The aforesaid passage by Chinnappa Reddy, J. had
been referred to and placed reliance upon to appreciate
the context and the purpose regard being had to the
nature of the text. The learned Judge has also
emphasized that no words of a statute should be
construed in isolation.
50. In Union of India v. Elphinstone Spinning and
Weaving Co. Ltd. and others
33
, the Constitution Bench,
while dealing with the concept of interpretation and the
duty of the Judge, opined that while examining a
particular statute for finding out the legislative intent it
33
(2001) 4 SCC 139
50
is the attitude of Judges in arriving at a solution by
striking a balance between the letter and spirit of the
statute without acknowledging that they have in any way
supplement the statute would be the proper criteria. The
duty of Judges is to expound and not to legislate is a
fundamental rule. There is, no doubt, a marginal area in
which the courts mould or creatively interpret legislation
and they are thus finishers, refiners and polishers of
legislation which comes to them in a state requiring
varying degrees of further processing. Reference in this
context was made to Corocraft Ltd. v. Pan American
Airways Inc.
34
and State of Haryana & others v.
Sampuran Singh & others
35
. The Court further
observed that by no stretch of imagination a Judge is
entitled to add something more than what is there in the
statute by way of a supposed intention of the legislature.
The cardinal principle of construction of statute is that
the true or legal meaning of an enactment is derived by
considering the meaning of the words used in the
enactment in the light of any discernible purpose or
34
(1968) 3 WLR 714, p.732,
35
(1975) 2 SCC 810
51
object which comprehends the mischief and its remedy
to which the enactment is directed. In the said case,
dwelling upon the concept of context, the larger Bench
opined that the context means; the statute as a whole,
the previous state of law, other statutes in pari materia,
the general scope of the statute and the mischief that it
was intended to remedy. It was further ruled that long
title which precedes is a part of an Act itself and is
admissible as an aid to its construction. That apart, the
preamble of an Act, no doubt, can also be read along
with other provisions of the Act to find out the meaning
of the words in enacting provisions to decide whether
they are clear or ambiguous but the preamble in itself
not being an enacting provision is not of the same weight
as an aid to construction of a Section of the Act as are
other relevant enacting words to be found elsewhere in
the Act. The utility of the preamble diminishes on a
conclusion as to clarity of enacting provisions. It is
therefore said that the preamble is not to influence the
meaning otherwise ascribable to the enacting parts
unless there is a compelling reason for it.
52
51.In Central Bank of India v. State of Kerala and
others
36
, the threeJudge Bench, speaking through
Singhvi, J., quoted Professor H.A. Smith as has been
quoted by Justice G.P. Singh in his book Principles of
Statutory Interpretation. The said passage is
reproduced below:
“‘No word’, says Professor H.A. Smith ‘has an
absolute meaning, for no words can be defined
in vacuo, or without reference to some
context’. According to Sutherland there is a
‘basic fallacy’ in saying ‘that words have
meaning in and of themselves’, and ‘reference
to the abstract meaning of words’, states
Craies, ‘if there be any such thing, is of little
value in interpreting statutes’. … in
determining the meaning of any word or
phrase in a statute the first question to be
asked is — ‘What is the natural or ordinary
meaning of that word or phrase in its context
in the statute? It is only when that meaning
leads to some result which cannot reasonably
be supposed to have been the intention of the
legislature, that it is proper to look for some
other possible meaning of the word or phrase.’
The context, as already seen, in the
construction of statutes, means the statute as
a whole, the previous state of the law, other
statutes in pari materia, the general scope of
the statute and the mischief that it was
intended to remedy.”
36
(2009) 4 SCC 94
53
52.The Court thereafter referred to the authorities in
Poppatlal Shah v. State of Madras
37
and Peerless
General Finance and Investment Co. Ltd. (supra) and
quoted observations of Lord Steyn in R (Westminister
City Council) v. National Asylum Support Service
38
. I
think it apposite to reproduce the same:
“5. … The starting point is that language in all
legal texts conveys meaning according to the
circumstances in which it was used. It follows
that the context must always be identified and
considered before the process of construction
or during it. It is, therefore, wrong to say that
the court may only resort to evidence of the
contextual scene when an ambiguity has
arisen.”
53.In Chief Justice of Andhra Pradesh & others v.
L.V.A. Dixitulu & others
39
, it has been ruled that the
primary principle of interpretation is that a
constitutional or statutory provision should be construed
‘according to the intent of they that made it’ (Coke), and
normally, such intent is gathered from the language of
the provision. If the language or the phraseology
employed by the legislation is precise and plain and thus
37
AIR 1953 SC 274
38
(2002) 1 WLR 2956 : (2002) 4 All ER 654 (HL)
39
(1979) 2 SCC 34
54
by itself, proclaims the legislative intent in unequivocal
terms, the same must be given effect to, regardless of the
consequences that may follow, but if the words used in
the provision are imprecise, protean or evocative or can
reasonably bear meanings more than one, the rule of
strict grammatical construction ceases to be a sure guide
to reach at the real legislative intent. In such a case, in
order to ascertain the true meaning of the terms and
phrases employed, it is legitimate for the court to go
beyond the arid literal confines of the provision and to
call in aid other wellrecognised rules of construction,
such as its legislative history, the basic scheme and
framework of the statute as a whole, each portion
throwing light on the rest, the purpose of the legislation,
the object sought to be achieved, and the consequences
that may flow from the adoption of one in preference to
the other possible interpretation. Thus, the Court in
certain situations allows room to go beyond the confines
of the literal meaning and to take recourse to other aids
for construction. Consequence of preference of one on
the other also gets accent.
55
54.In Kehar Singh & Ors v. State (Delhi Admn.)
40
,
the Court ruled that the Court should not consider any
provision out of the framework of the statute and not
view the provisions as abstract principles separated from
the motive force behind. It is the duty of the Court to
consider the provisions in the circumstances to which
they owe their origin and to ensure coherence and
consistency within the law as a whole and to avoid
undesirable consequences. That apart, the said
adventure, no doubt, enlarges the discretion of the Court
as to interpretation, but it does not imply power to
substitute individual notions of legislative intention. It
implies only a power of choice where differing
constructions are possible and different meanings are
available. As is manifest, the individual notions should
not come in the way of legislative intention.
55. In this regard, reference to Gem Granites v.
Commissioner of Income Tax, T.N.
41
would be fruitful.
In the said case, the Court observed that an argument
founded on what is claimed to be the intention of
40
(1988) 3 SCC 609
41
(2005) 1 SCC 289
56
Parliament may have appeal but a court of law has to
gather the object of the statute from the language used,
but what one may believe or think to be the intention of
Parliament cannot prevail if the language of the statute
does not support that view. In Padma Sundara Rao
(Dead) and others v. State of T.N. and others
42
, the
Constitution Bench referred to two principles of
construction – one relating to casus omissus and other in
regard to reading the statute as a whole. I am referring
to the authority to appreciate the principle of “casus
omissus”. In that context, the Court has ruled that:
“14. … a casus omissus cannot be supplied by
the court except in the case of clear necessity
and when reason for it is found in the four
corners of the statute itself but at the same
time a casus omissus should not be readily
inferred and for that purpose all the parts of a
statute or section must be construed together
and every clause of a section should be
construed with reference to the context and
other clauses thereof so that the construction
to be put on a particular provision makes a
consistent enactment of the whole statute. …”
56. In Hindustan Lever Ltd. v. Ashok Vishnu Kate
and others
43
, the question arose for entertaining
42
AIR 2002 SC 1334
43
(1995) 6 SCC 326
57
complaint filed under Section 28(1) of the Maharashtra
Recognition of Trade Union and Prevention of Unfair
Labour Practices Act, 1971. In the said case, the Labour
Court in which the complaints were filed took the view
that such complaints were not maintainable as the
actual orders of discharge or dismissal were not yet
passed by the employer. The learned single Judge
confirmed that view, but the appellate Bench of the High
Court dislodged the same. Dealing with the appeal
preferred by the employer, while interpreting the said
Act, the Court took note of the background of the Act,
examined the scheme of the enactment and referred to
the preamble in extenso and various other provisions
and interpreting the words which were used in the
provisions opined that the scheme of the legislation
intends to prevent commission of unfair labour practices
through the intervention of the Court and for that
purpose, the said Act has been enacted. The twoJudge
Bench referred to the decision in Workmen of American
Express International Banking Corporation v.
58
Management of American Express International
Banking Corporation
44
wherein Chinnappa Reddy, J.
had made the following observations:
“The principles of statutory construction are
well settled. Words occurring in statutes of
liberal import such as social welfare legislation
and human rights’ legislation are not to be put
in Procrustean beds or shrunk to Lilliputian
dimensions. In construing these legislations
the imposture of literal construction must be
avoided and the prodigality of its
misapplication must be recognised and
reduced. Judges ought to be more concerned
with the ‘colour’, the ‘content’ and the ‘context’
of such statutes (we have borrowed the words
from Lord Wilberforce’s opinion in Prenn v.
Simmonds
45
). In the same opinion Lord
Wilberforce pointed out that law is not to be
left behind in some island of literal
interpretation but is to enquire beyond the
language, unisolated from the matrix of facts
in which they are set; the law is not to be
interpreted purely on internal linguistic
considerations.”
57.In Githa Hariharan (supra) the Court was dealing
with the Constitutional validity of Section 6(a) of Hindu
Minority and Guardianship Act, 1956 and Section 19(b)
of the Guardian and Wards Act, 1890. A contention was
raised that the said provision violated Articles 14 and 15
44
(1985) 4 SCC 71
45
(1971) 3 All ER 237 : (1971) 1 WLR 1381
59
of the Constitution. Section 6(a) of the HMG Act reads as
follows:
“6. Natural guardians of a Hindu minor .—The
natural guardian of a Hindu minor, in respect of
the minor’s person as well as in respect of the
minor’s property (excluding his or her undivided
interest in joint family property), are—
a) in the case of a boy or an unmarried girl —
the father, and after him, the mother: Provided
that the custody of a minor who has not
completed the age of five years shall ordinarily
be with the mother;”
Be it noted, in the said case, the Reserve Bank of
India had questioned the authority of the mother, even
when she had acted with the concurrence of the father,
because in its opinion she could function as guardian
only after the lifetime of the father and not during his
lifetime. The question arose, what meaning should be
placed ‘after the lifetime’? The Court observed that if this
question is answered in affirmative, the section has to be
struck down as unconstitutional as the same is
undoubtedly violates of gender equality, one of the basic
principles of our Constitution. Interpreting the said
provision, the Court came to hold that:
60
“16. While both the parents are dutybound to
take care of the person and property of their
minor child and act in the best interest of his
welfare, we hold that in all situations where the
father is not in actual charge of the affairs of the
minor either because of his indifference or
because of an agreement between him and the
mother of the minor (oral or written) and the
minor is in the exclusive care and custody of the
mother or the father for any other reason is
unable to take care of the minor because of his
physical and/or mental incapacity, the mother
can act as natural guardian of the minor and all
her actions would be valid even during the
lifetime of the father, who would be deemed to be
“absent” for the purposes of Section 6(a) of the
HMG Act and Section 19(b) of the GW Act.”
Be it noted, the said interpretation was placed to
keep the statutes within the constitutional limits.
58. Recently, in Ajitsinh Arjunsinh Gohil v. Bar
Council of Gujarat and another
46
, the Court, while
interpreting Section 36B of the Advocates Act, 1961,
quoted the following observations of Sabyasachi
Mukharji, J. (as his Lordship then was) in Atma Ram
Mittal v. Ishwar Singh Punia
47
:
“9. … Blackstone tells us that the fairest and
most rational method to interpret the will of the
legislator is by exploring his intentions at the
time when the law was made, by signs most
46
(2017) 5 SCC 465
47
(1988) 4 SCC 284
61
natural and probable. And these signs are either
the words, the context, the subjectmatter, the
effects and consequence, or the spirit and reason
of the law. See Commentaries on the Laws of
England (facsimile of 1st Edn. of 1765, University
of Chicago Press, 1979, Vol. 1, p. 59). Mukherjea,
J. as the learned Chief Justice then was, in
Poppatlal Shah v. State of Madras
48
said that each
word, phrase or sentence was to be construed in
the light of purpose of the Act itself. But words
must be construed with imagination of purpose
behind them, said Judge Learned Hand, a long
time ago. It appears, therefore, that though we
are concerned with seeking of intention, we are
rather looking to the meaning of the words that
the legislature has used and the true meaning of
those words as was said by Lord Reid in Black
Clawson International Ltd. v. Papierwerke
WaldhofAschaffenburg A.G.
49
We are clearly of
the opinion that having regard to the language we
must find the reason and the spirit of the law.”
(Emphasis in original)
59.Thereafter, the Court referred to S. Gopal Reddy v.
State of A.P.
50
and High Court of Gujarat and
another v. Gujarat Kishan Mazdoor Panchayat and
others
51
and opined:
“28. The aforesaid authorities give stress on
textual interpretation that would match context
and further to explore the intention of the
legislature. The authorities further emphasise
that the words have to be understood regard
48
AIR 1953 SC 274
49
1975 AC 591 : (1975) 2 WLR 513 (HL)
50
(1996) 4 SCC 596
51
(2003) 4 SCC 712
62
being had to the purpose behind it and hence,
the concern with the intention is basically to
decipher the meaning of the word that the
legislature has placed on it. …”
60.In Raghunandan Saran Ashok Saran v. Pearey
Lal Workshop
52
, it has been held that if the words of
statute are clear, there is no question of interpretation
and in that context, grammatical construction is required
to be accepted as the golden rule. In Commissioner of
Income Tax, Bangalore v. J.H. Gotla
53
, it has been
held:
“46. Where the plain literal interpretation of a
statutory provision produces a manifestly unjust
result which could never have been intended by
the Legislature, the Court might modify the
language used by the Legislature so as to achieve
the intention of the Legislature and produce a
rational construction. The task of interpretation
of a statutory provision is an attempt to discover
the intention of the Legislature from the language
used. …”
61.In Polestar Electronic (Pvt.) Ltd. v. Additional
Commissioner, Sales Tax and another
54
, it has been
held:
52
(1986) 3 SCC 38
53
(1985) 4 SCC 343
54
(1978) 1 SCC 636
63
“11. … If the language of a statute is clear and
explicit, effect must be given to it, for in such a
case the words best declare the intention of the
lawgiver. It would not be right to refuse to place
on the language of the statute the plain and
natural meaning which it must bear on the
ground that it produces a consequence which
could not have been intended by the legislature.
It is only from the language of the statute that
the intention of the Legislature must be gathered,
for the legislature means no more and no less
than what it says. It is not permissible to the
Court to speculate as to what the Legislature
must have intended and then to twist or bend the
language of the statute to make it accord with the
presumed intention of the legislature. …”
62.I have referred to the aforesaid authorities to
highlight that legislative intention and the purpose of the
legislation regard being had to the fact that context has
to be appositely appreciated. It is the foremost duty of
the Court while construing a provision to ascertain the
intention of the legislature, for it is an accepted principle
that the legislature expresses itself with use of correct
words and in the absence of any ambiguity or the
resultant consequence does not lead to any absurdity,
there is no room to look for any other aid in the name of
creativity. There is no quarrel over the proposition that
the method of purposive construction has been adopted
64
keeping in view the text and the context of the
legislation, the mischief it intends to obliterate and the
fundamental intention of the legislature when it comes to
social welfare legislations. If the purpose is defeated,
absurd result is arrived at. The Court need not be
miserly and should have the broad attitude to take
recourse to in supplying a word wherever necessary.
Authorities referred to hereinabove encompass various
legislations wherein the legislature intended to cover
various fields and address the issues. While interpreting
a social welfare or beneficent legislation one has to be
guided by the ‘colour’, ‘content’ and the ‘context of
statutes’ and if it involves human rights, the conceptions
of Procrustean justice and Lilliputtian hollowness
approach should be abandoned. The Judge has to
release himself from the chains of strict linguistic
interpretation and pave the path that serves the soul of
the legislative intention and in that event, he becomes a
real creative constructionist Judge. I have perceived the
approach in Hindustan Lever Ltd. (supra) and Deepak
Mahajan (supra), Pratap Singh (supra) and many
65
others. I have also analysed where the Court has
declined to follow the said approach as in R.M.D.
Chamarbaugwalla (supra) and other decisions. The
Court has evolved the principle that the legislative
intention must be gatherable from the text, content and
context of the statute and the purposive approach should
help and enhance the functional principle of the
enactment. That apart, if an interpretation is likely to
cause inconvenience, it should be avoided, and further
personal notion or belief of the Judge as regards the
intention of the makers of the statute should not be
thought of. And, needless to say, for adopting the
purposive approach there must exist the necessity. The
Judge, assuming the role of creatively constructionist
personality, should not wear any hat of any colour to suit
his thought and idea and drive his thinking process to
wrestle with words stretching beyond a permissible or
acceptable limit. That has the potentiality to cause
violence to the language used by the legislature. Quite
apart from, the Court can take aid of causus omissus,
66
only in a case of clear necessity and further it should be
discerned from the four corner of the statute. If the
meaning is intelligible, the said principle has no entry. It
cannot be a ready tool in the hands of a Judge to
introduce as and what he desires.
63.Keeping in view the aforesaid parameters, I am
required to scrutinize whether the content and the
context of the POCSO Act would allow space for the
interpretation that has been canvassed by the learned
counsel for the appellant, which has also got support
from the State, before us. The POCSO Act, as I have
indicated earlier, comprehensively deals with various
facets that are likely to offend the physical identity and
mental condition of a child. The legislature has dealt
with sexual assault, sexual harassment and abuse with
due regard to safeguard the interest and well being of the
children at every stage of judicial proceeding in an
extremely detailed manner. The procedure is child
friendly and the atmosphere as commanded by the
provisions of the POSCO Act has to be congenial. The
protection of the dignity of the child is the spine of the
67
legislation. It also lays stress on mental physical
disadvantage of a child. It takes note of the mental
disability. The legislature in its wisdom has stipulated a
definition of the “child” which I have noted hereinbefore.
The submission is that the term “age” should not be
perceived through the restricted prism but must be
viewed with the telescope and thereby should include the
mental age.
64.Learned counsel for the appellant has drawn
support from Daniel Johannes Stephanus Van Der
Bank v. The State
55
wherein the High Court of South
Africa was dealing with an appeal against the conviction
and, in appeal there issues arose, two of which are – (1)
the appointment of an intermediary in accordance with
the provisions of Section 170A of the Criminal Procedure
Act 51 of 1977 and (2) that the court a quo erred in
accepting the evidence of the complainant who, to all
intents and purpose, was a single witness. In the said
case, the High Court of South Africa was dealing with
mental age of a victim. At the time of her testimony, she
55
[2014] ZAGPPHC 1017
68
was 19 years old and the State led evidence of a clinical
psychologist who had consulted and conducted tests on
her on several occasions. The evidence was led with
regard to her lack of understanding and various other
aspects. The High Court posed the question with regard
to object of Section 170A (1) of the said Act. Though the
amendment of Section 170A (1) which included the
mental age had not come into existence, yet the court
accepted the stand of the prosecution that the victim
though 19 years of age, could give the assistance of an
intermediary. The aforesaid judgment of the High Court
of South Africa shows that mental age can be considered
by the Court though the relevant amendment in relation
to a crime that had occurred before the amendment
came into force.
65.The matter travelled to the Supreme Court of
Appeal of South Africa in Daniel Johannes Stephanus
Van Der Bank v. The State
56
which took note of the fact
that intermediary was appointed and how he had
56
[2016] ZASCA 10
69
assisted the complainant in testifying. Leave granted by
the Supreme Court was limited to the following:
“Leave to appeal is limited to the issue whether
the complainant’s evidence was inadmissible on
the basis that it was given through an
intermediary in conflict with the provisions of s
170A of the Criminal Procedure Act as applicable
at the time she gave evidence.”
The Supreme Court referred to Section 170A. On
the date the complainant testified, the said Section read
as follows:
“Section 170A. Evidence through intermediaries.
— (1) Whenever criminal proceedings are pending
before any court and it appears to such court
that it would expose any witness under the age of
eighteen years to undue mental stress or
suffering if he or she testifies at such
proceedings, the court may, subject to
subsection (4), appoint a competent person as an
intermediary in order to enable such witness to
give his or her evidence through that
intermediary.”
It was contended before the Court that once the
witness reached the age of 18 years, there was no power
or discretion to invoke Section 170A. The Apex Court
took note of the subsequent amendment made in 2007
by Section 68 of Act 32 of 2007 to include not only
witnesses who were biologically under the age of eighteen
70
but also those who were mentally under the age of
eighteen. The Court referred to the decision in
S v Dayimani
57
and dealt with the same by stating thus:
“In Dayimani, the complainant was regarded as
‘moderately mentally retarded’ and s 170A was
nonetheless invoked (wrongly so that court held)
because the complainant was eighteen years old
at the time of testifying. It is not necessary to
consider whether Dayimani has been correctly
decided. The proper approach, in my view, would
be to consider the evidence other than that
adduced by the complainant and assess it to
establish whether the convictions should be
sustained or set aside.”
Thereafter the Court held thus:
“By definition, common law rape is the unlawful
and intentional sexual intercourse by a person
without the consent of the other. Consent has to
be free, voluntary and consciously given in order
to be valid. In our law, valid consent requires
that the consent itself must be recognised by law;
the consent must be real; and the consent must
be given by someone capable of consenting.2 The
first two requirements do not need to be
discussed since the issue is whether the
complainant was capable of giving consent
related to the third requirement. Where a person
in intellectually challenged, his or her condition
must be expertly assessed and only then can a
finding as to such capability be made. …”
57
2006 (2) SACR 594 (E)
71
In the ultimate analysis, the Supreme Court of
Appeal of South Africa confirmed the view of the High
Court by holding that the trial court was correct in
rejecting the appellant’s contention that the complainant
had consented to engage in these activities and it was
known that she was backward with a mental age of far
less than 16 years her biological age in 1999. Moreover,
there was overwhelming evidence on record that she was
incapable of giving required consent.
66.In Director of Public Prosecutions, Transvaal v.
Minister of Justice and Constitutional Development
and others
58
the Constitutional Court of South Africa
while considering the challenge to the South African
Criminal Law (Sexual Offences and Related Matters)
Amendment Act observed:
“74. Courts are now obliged to give consideration
to the effect that their decisions will have on the
rights and interests of the child. The legal and
judicial process must always be child
sensitive. As we held in S v M, statutes “must be
interpreted . . . in a manner which favours
protecting and advancing the interests of
children; and that courts must function in a
manner which at all times shows due respect for
58
(2009) ZACC 8 ; (2009) 4 SA 222 (CC) ; (2009) 2 SACR 130 (CC); (2009) 7 BCLR 637 (CC)
72
children’s rights.” Courts are bound to give effect
to the provisions of section 28(2) in matters that
come before them and which involve children. …”
67.The learned counsel for the appellant has
emphasized on the same to bolster the proposition that
the POCSO Act being child friendly and meant for
protecting the dignity of the child regard being had to her
physical and mental or body and mind integrity
interpretation of the term “age” should include mental
age so that statute becomes purposively child sensitive.
68.In Her Majesty The Queen v. D.A.I.
59
, before the
Supreme Court of Canada the question arose whether
the trial Judge had incorrectly interpreted the
requirements of Section 16 of the Canada Evidence Act
for the testimonial competence of persons of 14 years of
age or older (adults) with mental disabilities. Section
16(3) of the said Act imposes two requirements for the
testimonial competence of an adult with mental
disabilities: (1) the ability to communicate the evidence;
and (2) a promise to tell the truth. In the said case, the
59
[2012] 1 RCS 149
73
victim was an adult aged about 26 years and her mental
age was assessed at 6 years old. She was sexually
assaulted. The trial court acquitted the accused which
was confirmed by the Court of Appeal. The Supreme
Court of Canada by majority judgment unsettled the
conclusion of the trial court and the Court of Appeal after
dealing with provisions pertaining to Section 16 of the
Canada Evidence Act as introduced in 1987. The trial
Judge excluded her evidence and acquitted the accused
which was confirmed by the Court of Appeal, as stated
earlier. The majority while disagreeing speaking through
the learned Chief Justice adverted to the principle of
competence to testify, concept of admissibility and the
responsibility of the trial Judge under the said Act to
decide what evidence, if any, to be accepted. Thereafter
reference was made to competence of adult witness with
mental disability and Section 16 which governs
competence of adult witnesses with mental disabilities
was analysed. A contention was raised that Section 16(3)
should be supplemented by the requirement that an
adult witness with mental disability who cannot take an
74
oath or affirm must not only be able to communicate the
evidence and promise to tell the truth, but must also
understand the nature of a promise to tell the truth. The
majority disagreeing with the said submission analysed
the historical background, legislative content and the
intention of the Parliament and ultimately held thus:
“34. The foregoing reasons make a strong case
that s. 16(3) should be read as requiring only
two requirements for competence of an adult
with mental disabilities: (1) ability to
communicate the evidence; and (2) a promise to
tell the truth. …”
It is apt to note here that two other arguments were
raised in support of this interpretation – first, without a
further requirement of an understanding of the obligation
to tell the truth, a promise to tell the truth is an “empty
gesture”; second, Parliament’s failure in 2005 to extend
to adults with mental disabilities the Section 16.1(7)
prohibition on the questioning of children means that
it intended this questioning to continue for adults.
The Court, dealing with the first aspect, held that the
shortcoming in the said submission was that it departed
from the plain words of Section 16(3), on the basis of an
75
assumption that it was unsupported by any evidence and
contrary to Parliament’s intent. Imposing an additional
qualitative condition for competence that is not provided
in the text of Section 16(3) would demand compelling
demonstration that a promise to tell the truth cannot
amount to a meaningful procedure for adults with mental
disabilities. That apart, when such a witness promises to
tell the truth, it reinforces the seriousness of the occasion
and the need to do so. In dealing with the evidence of
children in Section 16.1, Parliament held that a promise
to tell the truth was all that is required of a child capable
of responding to questions. Parliament did not think a
child’s promise, without more, is an empty gesture.
69.The second argument, raised in support of the
proposition that “promising to tell the truth” in
Section 16(3) implies a requirement that the witness
must show that she understands the nature of the
obligation to tell the truth is that Parliament has not
enacted a ban on questioning adult witnesses with
mental disabilities on the nature of the obligation to tell
the truth, as it did for child witnesses in 2005 in Section
76
16.1(7). To understand this said argument, the Court
briefly traced the history of Section 16.1., and noted the
submission:
“[52] The final and most compelling answer to
the equivalency argument is simply this: When it
comes to testimonial competence, precisely what,
one may ask, is the difference between an adult
with the mental capacity of a sixyearold, and a
sixyearold with the mental capacity of a six
yearold? Parliament, by applying essentially the
same test to both under s. 16(3) and s.
16.1(3) and (6) of the Canada Evidence Act ,
implicitly finds no difference. In my view, judges
should not import one.
[53] I conclude that s. 16(3) of the Canada
Evidence Act , properly interpreted, establishes
two requirements for an adult with mental
disabilities to take the stand: the ability to
communicate the evidence and a promise to tell
the truth. A further requirement that the witness
demonstrate that she understands the nature of
the obligation to tell the truth should not be read
into the provision.
x x x x
[63] I conclude that, insofar as the authorities
suggest that “promising to tell the truth” in s.
16(3) should be read as requiring an abstract
inquiry into an understanding of the obligation to
tell the truth, they should be rejected. All that is
required is that the witness be able to
communicate the evidence and promise to tell the
truth.”
77
Eventually, the majority ruled that the threshold of
reliability for hearsay evidence differs from the threshold
ability to communicate the evidence for competence; a
ruling on testimonial capacity cannot be subsequently
justified by comments in a ruling on hearsay
admissibility. Had the competence hearing been properly
conducted, this might have changed the balance of the
trial, including the hearing (if any) on hearsay
admissibility. Ultimately, the Court allowed the appeal
and set aside the acquittal and directed for new trial.
70.I have already dealt with in extenso the decisions as
cited by the learned counsel for the appellant. The South
African view, as I find, by adopting the interpretative
process justifies the appointment of an intermediary in
respect of an adult woman who is mentally retarded. It is
a different situation altogether. The rule of evidence
which was not there but amended later on by the
Parliament, the Supreme Court of South Africa looking
into various aspects of the statute applied the principle of
inherent inclusiveness in the words and interpreted the
provision. The Constitutional Court of South Africa has
78
spoken about the requirement of sensitivity to a child.
Both the aspects, according to me, are distinguishable.
As far as the majority view of the Supreme Court of
Canada is concerned, it interpreted Section 16(3) of the
Canada Evidence Act and appreciated the various
aspects of the evidence tendered by an adult who is
mentally challenged and has declined to add something
which the Parliament has not envisaged. It has only
elaborated the process of adequate, proper and sensitive
appreciation keeping in view the words used in the
statute.
71.In this context, a passage from Tulshidas
Kanolkar (supra) will be appropriate to refer. In the said
case, the victim of rape was an adult who was a mentally
challenged person and her IQ was not even 1/3
rd
of what
a normal person has. She had become pregnant, and on
being asked by her parents, as to who was responsible
for her pregnancy, she on her own way pointed out finger
at the appellant therein. During the trial, the accused
indirectly took the stand of consent apart from other
79
pleas. The trial court repelled the plea of consent and
found the appellant guilty. In appeal, the High Court
negatived the contention raised by the accusedappellant
by upholding the conviction but reduced the sentence to
seven years. Before this Court, it was contended that in
the absence of any other person being examined, the
testimony of the prosecutrix could not be placed reliance
upon. The Court analysed the evidence and placed
reliance on the version of the victim and rejected the plea
of consent stating it as absolutely shallow. The Court
held that a mentally challenged person cannot give legal
consent which would involve understanding of the effect
of such consent and it has to be a conscious and
voluntary act. A distinction was drawn between “consent”
and “submission” and ruled that every consent involves a
submission but the converse does not follow and an act
of helpless resignation could not be treated as a consent.
Proceeding further, the Court said for constituting
consent there must be exercise of intelligence based on
the knowledge of the significance and the moral effect of
80
the Act. While parting with the case, the Court added
one aspect which requires to be noted:
“8. … a few words are necessary to be said about
prescription of sentence in a case where a
mentally challenged or deficient woman is the
victim. In subsection (2) of Section 376, clause
(f) relates to physical age of a woman under 12
years of age. In such a case sentence higher than
that prescribed for one under subsection (1) is
provided for. But what happens in a case when
the mental age of the victim is not even 12 years?
Such a woman is definitely in a more vulnerable
situation. A rapist in such a case in addition to
physical ravishment exploits her mental non
development and helplessness. The legislature
would do well in prescribing higher minimum
sentence in a case of this nature. The gravity of
offence in such case is more serious than the
enumerated categories indicated in subsection
(2) of Section 376.”
As it seems, the Court left it to the legislature for
prescribing a higher minimum sentence. The said
passage, as I perceive, does not help the proposition
canvassed in the instant case.
72. The learned counsel for the appellant has drawn my
attention to various Sections of IPC, namely, Sections 89,
90, 98, 228A, 305, 361 and 491. Section 89 IPC deals
with an act done in good faith for benefit of child or
insane person by or by consent of guardian. It stipulates
81
that nothing would be done in good faith for the benefit
of a person under twelve years of age or of unsound mind
by or by consent either express or implied of the
guardian or other person having lawful charge of that
person would be an offence by reason of any harm which
it may cause or be intended by the doer to cause or be
known by the doer to be likely to cause to that person.
Section 90 deals with consent known to be given under
fear or misconception. It also encapsulates of insane
person and consent of child which is a person who is
under twelve years of age. Section 98 covers right of
private defence against the act of a person of unsound
mind and when an act which would otherwise be an
offence is not offence by reason of want of maturity of
understanding, the unsoundness of mind. Section 305
deals with abetment of suicide of child or insane person
and provides punishment with death or imprisonment for
life, or imprisonment for a term not exceeding ten years.
Section 361 deals with kidnapping of minor under the
age of 16 years of age from lawful guardianship. The
learned counsel for the appellant relying upon the said
82
provisions would contend that IPC prescribes protection
on the basis of maturity of understanding to a child, and
the same protection has been extended to persons
suffering from unsoundness of mind and, therefore, it is
limpid that a penal law sometimes makes departure from
the chronological age by placing more emphasis on
capacity to understand the nature and consequences of
an act. On that basis, an argument has been structured
to treat the mental age of an adult within the ambit and
sweep of the term “age” that pertains to age under the
POCSO Act. In this regard, I am obligated to say what
has been provided in the IPC is on a different base and
foundation. Such a provision does treat the child
differently and carves out the nature of offence in respect
of an insane person or person of unsound mind. There is
a prescription by the statute. Learned counsel would
impress upon us that I can adopt the said prescription
and apply it to dictionary clause of POCSO Act so that
mental age is considered within the definition of the term
“age”. I am not inclined to accept the said submission.
83
73.In this regard, it is worthy to note that the
legislature despite having the intent in its Statement of
Objects and Reasons and the long Preamble to the
POCSO Act, has thought it wise to define the term “age”
which does not only mention a child but adds the words
“below the age of 18 years”. Had the word “child” alone
been mentioned in the Act, the scope of interpretation by
the Courts could have been in a different realm and the
Court might have deliberated on a larger canvass. It is
not so.
74. There is distinction between mental retardation and
mentally ill person. In this regard, it would be fruitful to
analyse the concept. In Suchita Srivastava (supra), the
assail was to the orders passed by the Division Bench of
the High Court which had ruled that it was in the best
interests of a mentally retarded women to undergo an
abortion. The said woman was an inmate at a
governmentrun welfare institution and after discovery of
her pregnancy, the administration of the Union Territory
84
of Chandigarh had approached the High Court for the
termination of her pregnancy keeping in mind that in
addition to being mentally retarded she was also an
orphan who did not have any parent or guardian to look
after her or her prospective child. The High Court had
appointed an expert body who had given a finding that
the victim had expressed her willingness to bear a child.
As the High Court, as already stated earlier, directed the
woman to undergo abortion, Special Leave to Appeal was
preferred before this Court. The threeJudge Bench
referred to The Metical Termination of Pregnancy Act,
1971 (for short, ‘the 1971 Act’) which clearly indicates
that consent is an essential condition for performing an
abortion on a woman who has attained the age of
majority and does not suffer from any “mental illness”.
The Court observed that there is clear distinction
between “mental illness” and “mental retardation” for the
purpose of the 1971 Act. The next issue the Court
addressed is the exercise of “parens patriae” jurisdiction.
The Court opined that the victim’s reproductive choice
has to be respected in spite of other factors such as lack
85
of understanding of the sexual act as well as
apprehensions about her capacity to carry the pregnancy
with full term and the assumption of maternal
responsibilities therefor. The Court adopted the said view
as the applicable statute contemplates that even a
woman who is found to be mentally retarded should give
her consent for termination of her pregnancy. Analysing
Section 3 of the 1971 Act, the Court ruled that the
legislative intention was to provide a qualified right to
abortion and the termination of pregnancy has never
been recognized as a normal recourse for expecting
mothers. In the said context, the Court held:
“22. There is no doubt that a woman’s right to
make reproductive choices is also a dimension of
“personal liberty” as understood under Article 21
of the Constitution of India. It is important to
recognise that reproductive choices can be
exercised to procreate as well as to abstain from
procreating. The crucial consideration is that a
woman’s right to privacy, dignity and bodily
integrity should be respected. This means that
there should be no restriction whatsoever on the
exercise of reproductive choices such as a
woman’s right to refuse participation in sexual
activity or alternatively the insistence on use of
contraceptive methods. Furthermore, women are
also free to choose birth control methods such as
undergoing sterilisation procedures. Taken to
86
their logical conclusion, reproductive rights
include a woman’s entitlement to carry a
pregnancy to its full term, to give birth and to
subsequently raise children. However, in the case
of pregnant women there is also a “compelling
State interest” in protecting the life of the
prospective child. Therefore, the termination of a
pregnancy is only permitted when the conditions
specified in the applicable statute have been
fulfilled. Hence, the provisions of the MTP Act,
1971 can also be viewed as reasonable
restrictions that have been placed on the exercise
of reproductive choices.”
And again:
“25. In all such circumstances, the consent of
the pregnant woman is an essential requirement
for proceeding with the termination of pregnancy.
This position has been unambiguously stated in
Section 3(4)(b) of the MTP Act, 1971.”
Dealing with the exceptions to the rule, the Court
referred to Section 3(4)(a) of the 1971 Act which reads
thus:
“(4)(a) No pregnancy of a woman, who has not
attained the age of eighteen years, or, who,
having attained the age of eighteen years, is a
mentally ill person, shall be terminated except
with the consent in writing of her guardian.”
The Court took note of the fact that the 1971 Act
was amended in 2002 by way of which the word “lunatic”
was replaced by the expression “mentally ill person” in
87
Section 3(4)(a) of the 1971 Act. “Mentally ill person” has
been defined under Section 2(b) of the 1971 Act which
means a person who is in need of treatment by reason of
any mental disorder other than mental retardation.
75. Dealing with the definition, the Court referred to the
Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 (for short,
‘1995 Act’) and opined that in the said Act also “mental
illness” has been defined as mental disorder other than
mental retardation. The Court also took note of the
definition of “mental retardation” under the 1995 Act.
The definition read as follows:
“2(r) ‘mental retardation’ means a condition of
arrested or incomplete development of mind of a
person which is specially characterised by
subnormality of intelligence.”
76.The Court also took note of the fact that the same
definition of “mental retardation” has also been
incorporated under Section 2(g) of the National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999. In that
context, the Court further expressed the view that the
88
legislative provisions in the various Acts clearly show
that persons who are in a condition of “mental
retardation” should ordinarily be treated differently from
those who are found to be “mentally ill”. While a
guardian can make decisions on behalf of a “mentally ill
person” as per Section 3(4)(a) of the 1971 Act, the same
cannot be done on behalf of a person who is in a
condition of “mental retardation”. After so stating, the
Court opined that there cannot be a dilution of the
requirement of consent since the same would amount to
an arbitrary and unreasonable restriction on the
reproductive rights of the victim. The Court analysed the
reasoning enumerated by the High Court and reversing
the view of the High Court held:
“32. Besides placing substantial reliance on the
preliminary medical opinions presented before it,
the High Court has noted some statutory
provisions in the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995 as well as the National
Trust for Welfare of Persons with Autism,
Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 where the distinction
between “mental illness” and “mental
retardation” has been collapsed. The same has
been done for the purpose of providing
affirmative action in public employment and
89
education as well as for the purpose of
implementing antidiscrimination measures. The
High Court has also taken note of the provisions
in IPC which lay down strong criminal law
remedies that can be sought in cases involving
the sexual assault of “mentally ill” and “mentally
retarded” persons. The High Court points to the
blurring of these distinctions and uses this to
support its conclusion that “mentally ill” persons
and those suffering from “mental retardation”
ought to be treated similarly under the MTP Act,
1971. We do not agree with this proposition.
33. We must emphasise that while the distinction
between these statutory categories can be
collapsed for the purpose of empowering the
respective classes of persons, the same
distinction cannot be disregarded so as to
interfere with the personal autonomy that has
been accorded to mentally retarded persons for
exercising their reproductive rights.”
In the said case, the Court referred to the United Nations
Declaration on the Rights of Mentally Retarded Persons,
1971 and reproduced the principles contained therein. I
think it appropriate to reproduce the same:
“1. The mentally retarded person has, to the
maximum degree of feasibility, the same rights as
other human beings.
2. The mentally retarded person has a right to
proper medical care and physical therapy and to
such education, training, rehabilitation and
guidance as will enable him to develop his ability
and maximum potential.
3. The mentally retarded person has a right to
economic security and to a decent standard of
living. He has a right to perform productive work
90
or to engage in any other meaningful occupation
to the fullest possible extent of his capabilities.
4. Whenever possible, the mentally retarded
person should live with his own family or with
foster parents and participate in different forms
of community life. The family with which he lives
should receive assistance. If care in an
institution becomes necessary, it should be
provided in surroundings and other
circumstances as close as possible to those of
normal life.
5. The mentally retarded person has a right to a
qualified guardian when this is required to
protect his personal wellbeing and interests.
6. The mentally retarded person has a right to
protection from exploitation, abuse and
degrading treatment. If prosecuted for any
offence, he shall have a right to due process of
law with full recognition being given to his degree
of mental responsibility.
7. Whenever mentally retarded persons are
unable, because of the severity of their handicap,
to exercise all their rights in a meaningful way or
it should become necessary to restrict or deny
some or all of these rights, the procedure used
for that restriction or denial of rights must
contain proper legal safeguards against every
form of abuse. This procedure must be based on
an evaluation of the social capability of the
mentally retarded person by qualified experts
and must be subject to periodic review and to the
right of appeal to higher authorities.”
77.The twoJudge Bench laid emphasis on principle
No. 7, as reproduced above, for it prescribes that a fair
procedure should be used for the “restriction or denial” of
the rights guaranteed to mentally retarded persons which
91
should ordinarily be the same as those given to other
human beings. It is significant to note that in the said
decision, the Court referred to ‘eugenics theory’ which
was used in the past to perform forcible sterilizations and
abortions on mentally retarded persons. Commenting on
the same, it was observed that such measures are anti
democratic and violative of the guarantee of “equal
protection before the law” as laid down in Article 14 of
our Constitution. The Court referred to a condition of
“mental retardation” and in that context, observed:
“55. It is also pertinent to note that a condition of
“mental retardation” or developmental delay is
gauged on the basis of parameters such as
intelligence quotient (IQ) and mental age (MA)
which mostly relate to academic abilities. It is
quite possible that a person with a low IQ or MA
may possess the social and emotional capacities
that will enable him or her to be a good parent.
Hence, it is important to evaluate each case in a
thorough manner with due weightage being given
to medical opinion for deciding whether a
mentally retarded person is capable of
performing parental responsibilities.”
78.I have copiously referred to the said authority as it
has analysed the distinction between “mental illness” and
“mental retardation”. It has also noted that a condition
92
of mental retardation or developmental delay is gauged
on the basis of parameters such as intelligence quotient
(IQ) and mental age (MA) which mostly relate to academic
abilities. The Court has narrated about the possibility of
late IQ or MA may possess the social and emotional
capacities that will enable him or her to be a good parent.
Persons with borderline, mild or moderate mental
retardation are capable of living in normal social
conditions even though they may need some supervision
and assistance from time to time. It observed:
“40. We must also be mindful of the varying
degrees of mental retardation, namely, those
described as borderline, mild, moderate, severe
and profound instances of the same. Persons
suffering from severe and profound mental
retardation usually require intensive care and
supervision and a perusal of academic materials
suggests that there is a strong preference for
placing such persons in an institutionalised
environment. However, persons with borderline,
mild or moderate mental retardation are capable
of living in normal social conditions even though
they may need some supervision and assistance
from time to time.
41. A developmental delay in mental intelligence
should not be equated with mental incapacity
and as far as possible the law should respect the
decisions made by persons who are found to be
in a state of mild to moderate “mental
retardation”.”
93
79. Be it noted, similar distinction has been
maintained in The Rights of Persons with Disabilities Act,
2016. The purpose of referring to the said judgment is
that this Court has kept itself alive to the fact that the
Parliament has always kept the mental retarded person
and mentally ill person in two different compartments.
80.Mr. Hegde, learned senior counsel appearing for
respondent No. 2, would contend that degree of mental
retardation or the IQ test may not always be a
determinative factor and, therefore, the principle of casus
omissus would not be applicable to the case at hand.
81.I have already referred to the judgment of the
Constitution Bench in Padma Sundara Rao (supra). In
the said case, the Court mentioned the situations where
the principle of casus omissus would be applied. Applying
the said principle, it can be stated without any fear of
contradiction that the said principle cannot be applied to
the provision that has arisen for consideration.
94
82.The situation can be viewed from another aspect.
The POCSO Act has identified minors and protected them
by prescribing the statutory age which has nexus with
the legal eligibility to give consent. The Parliament has
felt it appropriate that the definition of the term “age” by
chronological age or biological age to be the safest
yardstick than referring to a person having mental
retardation. It may be due to the fact that the standards
of mental retardation are different and they require to be
determined by an expert body. The degree is also
different. The Parliament, as it seems, has not included
mental age. It is within the domain of legislative wisdom.
Be it noted, a procedure for determination of age had
been provided under Rule 12 of the Juvenile Justice
(Care and Protection of Children) Rules, 2000. The
procedure was meant for determination of the biological
age. It may be stated here that Section 2(12) of the
Juvenile Justice (Care and Protection of Children) Act,
2015 (2 of 2016) defines “child” to mean a person who
not completed eighteen years of age. There is a procedure
provided for determination of the biological age. The
95
purpose of stating so is that the Parliament has
deliberately fixed the age of the child and it is in the
prism of biological age. If any determination is required,
it only pertains to the biological age, and nothing else.
83. The purpose of POCSO Act is to treat the minors as
a class by itself and treat them separately so that no
offence is committed against them as regards sexual
assault, sexual harassment and sexual abuse. The
sanguine purpose is to safeguard the interest and well
being of the children at every stage of judicial proceeding.
It provides for a child friendly procedure. It categorically
makes a distinction between a child and an adult. On a
reading of the POCSO Act, it is clear to us that it is
gender neutral. In such a situation, to include the
perception of mental competence of a victim or mental
retardation as a factor will really tantamount to causing
violence to the legislation by incorporating a certain
words to the definition. By saying “age” would cover
“mental age” has the potential to create immense
anomalous situations without there being any guidelines
or statutory provisions. Needless to say, they are within
96
the sphere of legislature. To elaborate, an addition of the
word “mental” by taking recourse to interpretative
process does not come within the purposive
interpretation as far as the POCSO Act is concerned. I
have already stated that individual notion or personal
conviction should not be allowed entry to the sphere of
interpretation. It has to be gathered from the legislative
intention and I have already enumerated how the
legislative intention is to be gathered. Respect for the
dignity of a person, as submitted, has its own pedestal
but that conception cannot be subsumed and integrated
into a definition where the provision is clear and
unambiguous and does not admit of any other
interpretation. If a victim is mentally retarded, definitely
the court trying the case shall take into consideration
whether there is a consent or not. In certain
circumstances, it would depend upon the degree of
retardation or degree of understanding. It should never
be put in a straight jacket formula. It is difficult to say in
absolute terms.
97
84.In this regard, I may profitably refer to Section 164
CrPC which deals with recording of confessions and
statement. Section 164(5A)(b), which is pertinent, reads
as under:
“(b) A statement recorded under clause (a) of a
person, who is temporarily or permanently
mentally or physically disabled, shall be
considered a statement in lieu of examinationin
chief, as specified in section 137 of the Indian
Evidence Act, 1872 such that the maker of the
statement can be crossexamined on such
statement, without the need for recording the
same at the time of trial.”
The purpose of referring to the said provision is to
highlight that the Parliament has legislated to safeguard
the interest of mentally disabled person.
85.Needless to emphasise that courts sometimes
expand or stretch the meaning of a phrase by taking
recourse to purposive interpretation. A Judge can have a
constructionist approach but there is a limitation to his
sense of creativity. In the instant case, I am obliged to
state that stretching of the words “age” and “year” would
be encroaching upon the legislative function. There is no
98
necessity. In Census Commissioner & others v. R.
Krishnamurthy
60
, the threeJudge Bench has ruled:
“No adjudicator or a Judge can conceive the idea
that the sky is the limit or for that matter there is
no barrier or fetters in one’s individual
perception, for judicial vision should not be
allowed to be imprisoned and have the
potentiality to cover celestial zones. Be it
ingeminated, refrain and restrain are the
essential virtues in the arena of adjudication
because they guard as sentinel so that
virtuousness is constantly sustained. Not for
nothing, centuries back Francis Bacon
61
had to
say thus:
“Judges ought to be more learned than
witty, more reverend than plausible, and
more advised than confident. Above all
things, integrity is their portion and proper
virtue. … Let the Judges also remember that
Solomon’s throne was supported by lions on
both sides: let them be lions, but yet lions
under the throne.”
In the said case, a passage from Frankfurter, J.
62
was reproduced which I think it apt to quote:
“For the highest exercise of judicial duty is to
subordinate one’s private personal pulls and one’s
private views to the law of which we are all
guardians—those impersonal convictions that make
a society a civilised community, and not the victims
of personal rule.”
60
(2015) 2 SCC 796
61
Bacon, “Essays: Of Judicature in Vol. I The Works of Francis Bacon” [Montague, Basil, Esq
(Eds.), Philadelphia: A Hart, Late Carey & Hart, 1852], pp. 58-59.
62
Frankfurter, Felix in Clark, Tom C., “Mr Justice Frankfurter: ‘A Heritage for all Who Love the
Law’ ” (1965) 51 ABAJ 330 at p. 332
99
86.In State of Uttar Pradesh and others v. Subhash
Chandra Jaiswal and others
63
, it has been held:
“17. A Judge should not perceive a situation in a
generalised manner. He ought not to wear a pair
of spectacles so that he can see what he intends
to see. There has to be a set of facts to express an
opinion and that too, within the parameters of
law.
x x x x
19. In Vemareddy Kumaraswamy Reddy v. State
of A.P.
64
the Court observed that:
“15. … the Judges should not proclaim that
they are playing the role of a lawmaker
merely for an exhibition of judicial valour.
They have to remember that there is a line,
though thin, which separates adjudication
from legislation. That line should not be
crossed or erased.”
87.In view of the aforesaid principles, the only
conclusion that can be arrived at is that definition in
Section 2(d) defining the term “age” cannot include
mental age.
88.Having said so, I would have proceeded to record
the formal conclusion. But, in the instant case, I am
disposed to think, more so, when the accused has
63
(2017) 5 SCC 163
64
(2006) 2 SCC 670
100
breathed his last and there is a medical certificate from
AIIMS as regards the mental disability of the victim, there
should be no further enquiry as envisaged under Section
357A of the CrPC. The said provision reads as follows:
“357A Victim compensation scheme. (1) Every
State Government in coordination with the Central
Government shall prepare a scheme for providing
funds for the purpose of compensation to the victim
or his dependents who have suffered loss or injury
as a result of the crime and who require
rehabilitation.
(2) Whenever a recommendation is made by the
Court for compensation, the District Legal Service
Authority or the State Legal Service Authority, as
the case may be, shall decide the quantum of
compensation to be awarded under the scheme
referred to in subsection (1).
(3) If the trial Court, at the conclusion of the trial, is
satisfied, that the compensation awarded under
section 357 is not adequate for such rehabilitation,
or where the cases end in acquittal or discharge and
the victim has to be rehabilitated, it may make
recommendation for compensation.
(4) Where the offender is not traced or identified,
but the victim is identified, and where no trial takes
place, the victim or his dependents may make an
application to the State or the District Legal
Services Authority for award of compensation.
(5) On receipt of such recommendations or on the
application under subsection (4), the State or the
District Legal Services Authority shall, after due
101
enquiry award adequate compensation by
completing the enquiry within two months.
(6) The State or the District Legal Services
Authority, as the case may be, to alleviate the
suffering of the victim, may order for immediate
firstaid facility or medical benefits to be made
available free of cost on the certificate of the police
officer not below the rank of the officer in charge of
the police station or a Magistrate of the area
concerned, or any other interim relief as the
appropriate authority deems fit.”
On a perusal of the aforesaid provision, it is quite vivid
that when Court makes a recommendation for
compensation, the District Legal Services Authority or
the State Legal Services Authority is required to decide
the quantum of compensation to be awarded under the
Scheme prepared by the State Government in
coordination with the Central Government. The
State/District Legal Services Authority has to conduct an
inquiry and award the adequate compensation by
completing the inquiry. Had the accused been alive, the
trial would have taken place in a Court of Session as
provided under the CrPC. As the accused has died and
the victim is certified to be a mentally disabled person
and is fighting the lis for some time to come within the
102
purview of the POCSO Act wherein the trial is held in a
different manner and the provisions relating to the
compensation are different, I direct that the State Legal
Services Authority, Delhi shall award the compensation
keeping in view the Scheme framed by the Delhi
Government. As regards the quantum, I am of the
convinced opinion that it is a fit case where the victim
should be granted the maximum compensation as
envisaged under the Scheme. I clarify that it is so
directed regard being had to the special features of the
case.
89.The appeals are disposed of, accordingly.
.............................................J.
[DIPAK MISRA]
NEW DELHI;
JULY 21, 2017
103
Reportable
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NOS.2640-2642 OF 2016
Ms. Eera through Dr. Manjula Krippendorf …Petitioner
Versus
State (Govt. of NCT of Delhi) and Anr. …Respondents
J U D G M E N T
R.F.NARIMAN, J. (concurring)
1.Having read the erudite judgment of my
learned brother, and agreeing fully with him on the
conclusion reached, given the importance of the
Montesquiean separation of powers doctrine where
the judiciary should not transgress from the field of
judicial law making into the field of legislative law
making, I have felt it necessary to add a few words
of my own.
2.Mr. Sanjay R. Hegde, the learned Amicus
Curiae, has argued before us that the interpretation
of Section 2(1)(d) of the Protection of Children from
Sexual Offences Act, 2012 cannot include “mental”
age as such an interpretation would be beyond the
‘Lakshman Rekha’ – that is, it is no part of this
Court’s function to add to or amend the law as it
stands. This Court’s function is limited to
interpreting the law as it stands, and this being the
case, he has exhorted us not to go against the plain
literal meaning of the statute.
3.Since Mr. Hegde’s argument raises the
constitutional spectre of separation of powers, let it
first be admitted that under our constitutional
scheme, Judges only declare the law; it is for the
legislatures to make the law. This much at least is
clear on a conjoint reading of Articles 141 and 245
of the Constitution of India, which are set out
hereinbelow:-
“141. Law declared by Supreme Court
to be binding on all courts.
The law declared by the Supreme Court
shall be binding on all courts within the
territory of India.
245. Extent of laws made by Parliament
and by the Legislatures of States.
105
(1) Subject to the provisions of this
Constitution, Parliament may make laws
for the whole or any part of the territory
of India, and the Legislature of a State
may make laws for the whole or any part
of the State.
(2) No law made by Parliament shall be
deemed to be invalid on the ground that
it would have extra-territorial operation.”
4.That the Legislature cannot ‘declare’ law is
embedded in Anglo Saxon jurisprudence. Bills of
attainder, which used to be passed by Parliament in
England, have never been passed from the 18
th
century onwards. A legislative judgment is
anathema. As early as 1789, the U.S. Constitution
expressly outlawed bills of attainder vide Article I
Section 9(3). This being the case with the
Legislature, the counter argument is that the
Judiciary equally cannot ‘make’ but can only
‘declare’ law. While declaring the law, can Judges
make law as well? This interesting question has
haunted Anglo-Saxon jurisprudence for at least 500
years. Very early in the history of this jurisprudence,
Heydon’s case, 76 E.R. 637 [1584] declared as
under:
106
“And it was resolved by them, that for
the sure and true interpretation of all
Statutes in general (be they penal or
beneficial, restrictive or enlarging of the
common law,) four things are to be
discerned and considered:-
1st. What was the common law before
the making of the Act,
2nd. What was the mischief and defect
for which the common law did not
provide,
3rd. What remedy the Parliament hath
resolved and appointed to cure the
disease of the commonwealth,
And, 4th. The true reason of the remedy;
and then the office of all the Judges is
always to make such construction as
shall suppress the mischief, and
advance the remedy, and to suppress
subtle inventions and evasions for
continuance of the mischief, and pro
privato commodo , and to add force and
life to the cure and remedy, according to
the true intent of the makers of the Act,
pro bono publico .”
5.Several centuries later, the Privy Council, (in a
case which came up from the Bombay High Court,
construing the Ship Registry Act of 1841) in
Crawford v. Spooner, Moore’s Indian Appeals,
Volume 4 (1846 to 1850) 179, held as follows:-
“Their Lordships are clearly of opinion,
that the Judgment of the Court of
Bombay cannot stand. The construction
of the Act must be taken from the bare
words of the Act. We cannot fish out
107
what possibly may have been the
intention of the Legislature; we cannot
aid the Legislature's defective phrasing
of the Statute; we cannot add, and
mend, and, by construction, make up
deficiencies which are left there. If the
Legislature did intend that which it has
not expressed clearly; much more, if the
Legislature intended something very
different; if the Legislature intended
something pretty nearly the opposite of
what is said, it is not for Judges to invent
something which they do not meet with
in the words of the text (aiding their
construction of the text always, of
course, by the context); it is not for them
so to supply a meaning, for, in reality, it
would be supplying it: the true way in
these cases is, to take the words as the
Legislature have given them, and to
take the meaning which the words given
naturally imply, unless where the
construction of those words is, either by
the preamble or by the context of the
words in question, controlled or altered;
and, therefore, if any other meaning was
intended than that which the words
purport plainly to import, then let another
Act supply that meaning, and supply the
defect in the previous Act.”
“It appears to their Lordships, therefore,
that this is a case, free from all
reasonable doubt, and that they must
construe the words of the Act, as they
find them.” (at pages 187 & 189)
6.About a decade later, in Grey v. Pearson,
1857 (6) HLC 61, Lord Wensleydale declared:-
“I have been long and deeply impressed
with the wisdom of the rule, now, I
believe, universally adopted, at least in
108
the Courts of Law in Westminster Hall,
that in construing wills and indeed
statutes, and all written instruments, the
grammatical and ordinary sense of the
words is to be adhered to, unless that
would lead to some absurdity, or some
repugnance or inconsistency with the
rest of the instrument, in which case the
grammatical and ordinary sense of the
words may be modified, so as to avoid
that absurdity and inconsistency, but no
farther. This is laid down by Mr. Justice
Burton, in a very excellent opinion,
which is to be found in the case of
Warburton v. Loveland (see ante, p. 76.
n.).” (at page no.1234)
7.This celebrated passage has since come to
represent what has been described as the ‘Golden
Rule’ of interpretation of statutes. The construction
of a clause in a will was before the House of Lords
and not the construction of a statute. Nevertheless,
the “Golden Rule” was held to cover the
construction of wills, statutes and all other written
instruments.
8.It will be noticed, that both the Privy Council
and the House of Lords emphasized the literal
meaning of the text of a statute. Interestingly, the
Privy Council added that the text must necessarily
be construed with the aid of the context of the words
109
that are to be construed, and that the words in
question could be controlled or altered by the
context or the Preamble of the statute. The House
of Lords went further, and stated that the
grammatical and ordinary sense of the words to be
construed would be given effect to unless it would
lead to some absurdity, repugnance, or
inconsistency with the rest of the statute, in which
case the grammatical and ordinary sense of the
words may be modified so as to avoid such
absurdity or inconsistency, but no further. It is
important to note that, even under this rule, the
literal meaning of the text of a statute is not
sacrosanct, and can, in certain exceptional
circumstances, be modified. However, the
immediate consequence of applying the literal rule
of construction of a statute is that words must be
understood in their ordinary grammatical sense.
One obvious problem with this is that words often
have different shades of meaning and are not fixed
in their content. This was put rather well by Justice
Holmes in Towne v. Eisner, 245 U.S. 418:
110
“But it is not necessarily true that
income means the same thing in the
Constitution and the Act. A word is not a
crystal, transparent and unchanged; it is
the skin of a living thought and may vary
greatly in color and content according to
the circumstances and the time in which
it is used.”
65
9.Judge Learned Hand of the Court of Appeals
New York also conveyed the same thought rather
felicitously in Commissioner of Internal Revenue
v. Ickelheimer, 132 Federal Reporter, 2d Series,
660 as follows:
“Compunctions about judicial legislation
are right enough as long as we have
any genuine doubt as to the breadth of
the legislature's intent; and no doubt the
most important single factor in
ascertaining its intent is the words it
employs. But the colloquial words of a
statute have not the fixed and artificial
content of scientific symbols; they have
a penumbra, a dim fringe, a connotation,
for they express an attitude of will, into
which it is our duty to penetrate and
which we must enforce ungrudgingly
when we can ascertain it, regardless of
imprecision in its expression.” (at page
662)
65
Interestingly, Charles Evans Hughes argued the case on behalf of the appellant just
after he stepped down from the Supreme Court as a Justice thereof in order to fight a
Presidential election. He fought the election and lost. Thereafter, he went to New
York and set up an extremely lucrative law practice. He eventually became the 11
th
Chief Justice of the Supreme Court of the United States, being appointed in 1930 and
having retired in 1941.
111
10.In an illuminating article by Archibald Cox in
60 Harv. Law Rev. 370, 1946-47, the learned author
put the dilemma between literal and purposive
construction thus:-
“The task of interpretation, thus
conceived, presents a second insoluble
dilemma. Since the words of a statute
are chosen by the legislature to express
its meaning, they are “no doubt the most
important single factor in ascertaining its
intent.” Our belief in the supreme
importance of a public, fixed, and
ascertainable standard of conduct
requires, moreover, a measure of
adherence to what those subject to a
statute would understand to be the
meaning of its terms. Yet “there is no
surer way to misread any document
than to read it literally.” Common speech
is not exact and often does not precisely
fit those situations, and those only,
which a statute seeks to cover.
Indispensable words have gathered up
connotations in the past which cling
persistently in new surroundings. And
even if some technical terminology like
that of science were available,
legislatures could not anticipate and
provide with particularity for each set of
circumstances comprehended within a
general purpose. The result is that “in
every interpretation we must pass
between Scylla and Charybdis.” No one
has ever suggested that the courts must
always follow the letter of a statute
regardless of the outcome, nor does
anyone contend that the words may be
entirely disregarded. The issue is where
112
to strike the balance.” (at page
Nos.375 and 376)
11.Added to these problems is the problem of
inept draftsmanship. In Kirby v. Leather, 1965(2)
All E.R. 441, Danckwerts, L.J., criticised the
language of the Limitation Act, 1939 when he spoke
of the custody of a parent. He wrote:
“The custody of a parent”: what a
strange conception that is in regard to a
capable young man of twenty-four years
and over. This is such an extraordinary
provision that at times it seemed to me
that the draftsman must have been of
unsound mind. Of course that is
absurd. The same provision has been
repeated in the Law Reform (Limitation
of Actions, &c.) Act, 1954, and the
Limitation Act 1963. We must strain
ourselves to give it a sensible meaning.
The idea behind this provision is, I
suppose, that the parent in such a case
will be capable of taking proceedings as
the next friend of the person in
question.” (at page 445)
12.Similarly, in Vandyk v. Oliver [1976] 1 All ER
466, Lord Lord Wilberforce, lamented:
“It is said, however, that this result, far-
reaching as it is, follows from the
wording of the section. As to this I would
say two things: first, if ever there was a
case for preferring a purposive to a
literal interpretation, this is such a case.
The section is a labyrinth, a minefield of
obscurity. The key subsection (d) refers
113
back to (a), (b) or (c) with a connecting
link described as similarity in kind: yet
no criterion of similarity is given; so we
are offered criteria based on “purpose”
or “function”, or on these words in
combination. But this introduces yet
further difficulties, for there is acute
dispute, if purpose is the test, whose
purpose is meant and whether this must
be the sole or dominant purpose, or any
purpose: if function is meant whether
this is the same thing as actual use, or
whether the word again introduces the
conception of purpose. Then on the
incorporated subsections, there is a
difference of view whether a National
Health authority had power to provide
accommodation for a person in the
position of the ratepayer or whether the
power (conferred by the 1968 Act) is an
ancillary power to the provision of care.
Similar difficulties arise under para (c).
My Lords, I revolt against a step by step
approach, from one doubtful expression
to another, where each step is
hazardous, through referential
legislation, towards a conclusion, to my
mind so far out of accord with any
credible policy. The fact that Parliament
for its own purposes chooses to
legislate in this obscure manner does
not force us to be the blind led by the
blind.” (at page No.470)
13.The Indian Income Tax Act, 1960 has also
been the subject matter of judicial criticism. Often,
amendment follows upon amendment making the
numbering and the meaning of its sections and sub-
sections both bizarre and unintelligible. One such
114
criticism by Hegde, J. in Commissioner of Income
Tax v. Distributor (Baroda) (P) Ltd., (1972) 4 SCC
353, reads as follows:
“We have now to see what exactly in the
meaning of the expression “in the case
of a company whose business consists
wholly or mainly in the dealing in or
holding of investments” in the main
Section 23-A and the expression “in the
case of a company whose business
consist wholly or mainly in the dealing in
or holding of investments” in clause (i) of
Explanation 2 to Section 23-A. The Act
contains many mind-twisting formulas
but Section 23-A along with some other
sections takes the place of pride
amongst them. Section 109 of the 1961
Income Tax Act which has taken the
place of old Section 23-A of the Act is
more understandable and less abstruse.
But in these appeals we are left with
Section 23-A of the Act.” (Para 15)
14.All this reminds one of the old British ditty:
“I’m the Parliament’s draftsman,
I compose the country’s laws,
And of half the litigation
I’m undoubtedly the cause!”
15.In order that inept draftsmanship be
explained, in the old days sometimes the Judges
themselves enquired of the King’s Council what a
statute meant. (See Dias’ jurisprudence Second
edition – see page 110 footnote 2). The whole
115
difficulty lies in defining the limits of the ‘Lakshman
Rekha’. In a House of Lord’s judgment, in Boyse v.
Rossborough, 1857 6 HLC 61 which dealt with
whether a will was valid, Lord Cranworth held:
“The inquiries must be: First, was the
alleged testator at the time of its
execution a person of sound mind? And
if he was, then, secondly, was the
instrument in question the expression of
his genuine will, or was it the expression
of a will created in his mind by coercion
or fraud?
On the first head the difficulty to be
grappled with arises from the
circumstance that the question is almost
always one of degree. There is no
difficulty in the case of a raving madman
or of a drivelling idiot, in saying that he
is not a person capable of disposing of
property. But between such an extreme
case and that of a man of perfectly
sound and vigorous understanding,
there is every shade of intellect, every
degree of mental capacity. There is no
possibility of mistaking midnight for
noon; but at what precise moment
twilight becomes darkness is hard to
determine.”
16.All this leads to whether Judges do creatively
interpret statutes and are unjustifiably criticized as
having in fact legislated, or whether in the guise of
creative interpretation they actually step outside the
‘Lakshman Rekha’. As Justice Cardozo has
116
picturesquely put it: the Judge is not to innovate at
pleasure. He is not a knight errant roaming at will in
pursuit of his own ideal of beauty or of goodness
(See: Cardozo, Nature of Judicial Process, P. 141).
Opposed to this rather conservative view is the view
of Justice Holmes, in a celebrated dissent, in
Southern P. Co. v. Jensen, 244 US 205 at page
221:
“I recognize without hesitation that
judges do and must legislate, but they
can do so only interstitially; they are
confined from molar to molecular
motions.”
17.The Supreme Court of India has echoed the
aforesaid statement in at least two judgments. In
V.C. Rangadurai v. D. Gopalan & Others, 1979 1
SCR 1054, Krishna Iyer, J. when confronted with
the correct interpretation of Section 35(3) of the
Advocates Act, 1961, held:
“Speaking frankly, Section 35(3) has a
mechanistic texture, a set of punitive
pigeon holes, but we may note that
words grow in content with time and
circumstance, that phrases are flexible
in semantics, that the printed text is a
set of vessels into which the court may
pour appropriate judicial meaning. That
statute is sick which is allergic to change
117
in sense which the times demand and
the text does not countermand. That
court is superficial which stops with the
cognitive and declines the creative
function of construction. So, we take the
view that “quarrying” more meaning is
permissible out of Section 35(3) and the
appeal provisions, in the brooding
background of social justice sanctified
by Article 38, and of free legal aid
enshrined by Article 39-A of the
Constitution.
xx xx xx
Judicial “Legisputation” to borrow a
telling phrase of J. Cohen, is not
legislation but application of a given
legislation to new or unforeseen needs
and situations broadly falling within the
statutory provision. In that sense,
“interpretation is inescapably a kind of
legislation” [Dickerson: The
Interpretation and Application of
Statutes, p. 238]. This is not
legislation stricto sensu but application,
and is within the court's province.” (at
pages 1059 and 1060)
18.Similarly, in C.I.T. v. B.N. Bhattacharjee,
1979 (3) SCR 1133 the same learned Judge in
construing Section 245M of the Income Tax Act
stated:
“We are mindful that a strictly
grammatical construction is departed
from in this process and a mildly
legislative flavour is imparted by this
interpretation. The judicial process does
not stand helpless with folded hands but
118
engineers its way to discern meaning
when a new construction with a view to
rationalisation is needed.” (at page
1155)
19.In Directorate of Enforcement v. Deepak
Mahajan, 1994 3 SCC 440, this Court held:
“Though the function of the Courts is
only to expound the law and not to
legislate, nonetheless the legislature
cannot be asked to sit to resolve the
difficulties in the implementation of its
intention and the spirit of the law. In
such circumstances, it is the duty of the
court to mould or creatively interpret the
legislation by liberally interpreting the
statute.
25. In Maxwell on Interpretation of
Statutes, Tenth Edn. at page 229, the
following passage is found:
“Where the language of a statute, in its
ordinary meaning and grammatical
construction, leads to a manifest
contradiction of the apparent purpose of
the enactment, or to some
inconvenience or absurdity, hardship or
injustice, presumably not intended, a
construction may be put upon it which
modifies the meaning of the words, and
even the structure of the sentence. …
Where the main object and intention of a
statute are clear, it must not be reduced
to a nullity by the draftsman's
unskilfulness or ignorance of the law,
except in a case of necessity, or the
absolute intractability of the language
used.”
119
26. In Seaford Court Estates
Ltd. v. Asher [(1949) 2 All ER 155, 164]
Denning, L.J. said:
“[W]hen a defect appears a judge
cannot simply fold his hands and blame
the draftsman. He must set to work on
the constructive task of finding the
intention of Parliament … and then he
must supplement the written word so as
to give ‘force and life’ to the intention of
the legislature. A Judge should ask
himself the question how, if the makers
of the Act had themselves come across
this ruck in the texture of it, they would
have straightened it out? He must then
do as they would have done. A judge
must not alter the material of which the
Act is woven, but he can and should iron
out the creases.”
27. Though the above observations of
Lord Denning were disapproved in
appeal by the House of Lords in Magor
and St. Mellons v. Newport
Corpn. [(1951) 2 All ER 839 (HL)]
Sarkar, J. speaking for the Constitution
Bench in M. Pentiah v. Muddala
Veeramallappa [(1961) 2 SCR 295 : AIR
1961 SC 1107] adopted that reasoning
of Lord Denning. Subsequently also,
Beg, C.J. in Bangalore Water Supply
and Sewerage Board v. A.
Rajappa [(1978) 2 SCC 213: 1978 SCC
(L&S) 215 : AIR 1978 SC 548] approved
the observations of Lord Denning stating
thus: (SCC p. 285, para 148)
“Perhaps, with the passage of time,
what may be described as the extension
of a method resembling the ‘arm-chair
rule’ in the construction of wills, Judges
can more frankly step into the shoes of
120
the legislature where an enactment
leaves its own intentions in much too
nebulous or uncertain a state. ”
(emphasis supplied)
28. It will be befitting, in this context, to
recall the view expressed by Judge
Frank in Guiseppi v. Walling [144 F 2d
608, 620, 622 (CCA 2d, 1944) quoted in
60 Harvard Law Review 370, 372] which
read thus:
“The necessary generality in the
wordings of many statutes, and
ineptness of drafting in others frequently
compels the court, as best as they can,
to fill in the gaps, an activity which no
matter how one may label it, is in part
legislative. Thus the courts in their way,
as administrators perform the task of
supplementing statutes. In the case of
courts, we call it ‘interpretation’ or ‘filling
in the gaps’; in the case of
administrators we call it ‘delegation’ or
authority to supply the details.”
29. Subba Rao, C.J. speaking for the
Bench in Chandra Mohan v. State of
U.P. [(1967) 1 SCR 77 : AIR 1966 SC
1987 : (1967) 1 LLJ 412] has pointed
out that the fundamental rule of
interpretation is that in construing the
provisions of the Constitution or the Act
of Parliament, the Court “will have to
find out the express intention from the
words of the Constitution or the Act, as
the case may be …” and eschew the
construction which will lead to absurdity
and give rise to practical inconvenience
or make the provisions of the existing
law nugatory.
121
A.P. Sen, J. in Organo Chemical
Industries v. Union of India [(1979) 4
SCC 573 : 1980 SCC (L&S) 92 : (1980)
1 SCR 61] has stated thus: (SCR p. 89 :
SCC p. 586, para 23)
“A bare mechanical interpretation of the
words ‘devoid of concept or purpose’ will
reduce most of legislation to futility. It is
a salutary rule, well established, that the
intention of the legislature must be
found by reading the statute as a
whole.”
30. Krishna Iyer, J. has pointed out in
his inimitable style in Chairman, Board
of Mining Examination and Chief
Inspector of Mines v. Ramjee [(1977) 2
SCC 256 : 1977 SCC (L&S) 226 : AIR
1977 SC 965] : “To be literal in meaning
is to see the skin and miss the soul of
the Regulation.”” (at page Nos.453 to
455)
20.All this has led to what may be called the
theory of Creative Interpretation. This theory was
reiterated in Union of India v. Elphinstone
Spinning and Weaving Co. Ltd. and Ors, 2001 (4)
SCC 139:-
“While examining a particular statute for
finding out the legislative intent it is the
attitude of Judges in arriving at a
solution by striking a balance between
the letter and spirit of the statute without
acknowledging that they have in any
way supplemented the statute would be
the proper criterion. The duty of Judges
is to expound and not to legislate is a
122
fundamental rule. There is no doubt a
marginal area in which the courts mould
or creatively interpret legislation and
they are thus finishers, refiners and
polishers of legislation which comes to
them in a state requiring varying
degrees of further processing.
(See: Corocraft Ltd. v. Pan American
Airways Inc. [(1968) 3 WLR 714 : (1968)
2 All ER 1059 : (1969) 1 QB 616] WLR,
p. 732 and State of
Haryana v. Sampuran Singh [(1975) 2
SCC 810].) But by no stretch of
imagination a Judge is entitled to add
something more than what is there in
the statute by way of a supposed
intention of the legislature. It is,
therefore, a cardinal principle of
construction of statutes that the true or
legal meaning of an enactment is
derived by considering the meaning of
the words used in the enactment in the
light of any discernible purpose or object
which comprehends the mischief and its
remedy to which the enactment is
directed.” [at para 17]
21.Instances of creative interpretation are when
the Court looks at both the literal language as well
as the purpose or object of the statute in order to
better determine what the words used by the
draftsman of legislation mean. In D.R.
Venkatachalam v. Deputy Transport
Commissioner, (1977) 2 SCC 273, an early
instance of this is found in the concurring judgment
123
of Beg, J. The learned Judge put it rather well when
he said:
“It is, however, becoming increasingly
fashionable to start with some theory of
what is basic to a provision or a chapter
or in a statute or even to our
Constitution in order to interpret and
determine the meaning of a particular
provision or rule made to subserve an
assumed “basic” requirement. I think
that this novel method of construction
puts, if I may say so, the cart before the
horse. It is apt to seriously mislead us
unless the tendency to use such a mode
of construction is checked or corrected
by this Court. What is basic for a section
or a chapter in a statute is provided:
firstly, by the words used in the statute
itself; secondly, by the context in which a
provision occurs, or, in other words, by
reading the statute as a whole; thirdly,
by the preamble which could supply the
“key” to the meaning of the statute in
cases of uncertainty or doubt; and,
fourthly, where some further aid to
construction may still be needed to
resolve an uncertainty, by the legislative
history which discloses the wider
context or perspective in which a
provision was made to meet a particular
need or to satisfy a particular purpose.
The last mentioned method consists of
an application of the Mischief Rule laid
down in Heydon’s case long ago.” [para
28]
22.In the celebrated judgment of Reserve Bank
of India v. Peerless General Finance &
124
Investment Co. Ltd. and Others, (1987) 1 SCC
424, O. Chinnappa Reddy, J. stated:-
“Interpretation must depend on the text
and the context. They are the bases of
interpretation. One may well say if the
text is the texture, context is what gives
the colour. Neither can be ignored. Both
are important. That interpretation is best
which makes the textual interpretation
match the contextual. A statute is best
interpreted when we know why it was
enacted. With this knowledge, the
statute must be read, first as a whole
and then section by section, clause by
clause, phrase by phrase and word by
word. If a statute is looked at, in the
context of its enactment, with the
glasses of the statute-maker, provided
by such context, its scheme, the
sections, clauses, phrases and words
may take colour and appear different
than when the statute is looked at
without the glasses provided by the
context. With these glasses we must
look at the Act as a whole and discover
what each section, each clause, each
phrase and each word is meant and
designed to say as to fit into the scheme
of the entire Act. No part of a statute and
no word of a statute can be construed in
isolation. Statutes have to be construed
so that every word has a place and
everything is in its place. It is by looking
at the definition as a whole in the setting
of the entire Act and by reference to
what preceded the enactment and the
reasons for it that the Court construed
the expression “Prize Chit”
in Srinivasa [(1980) 4 SCC 507 : (1981)
1 SCR 801 : 51 Com Cas 464] and we
125
find no reason to depart from the Court's
construction.” [para 33]
23.Indeed, the modern trend in other
Commonwealth countries, including the U.K. and
Australia, is to examine text as well as context, and
object or purpose as well as literal meaning. Thus,
in Oliver Ashworth Ltd. V. Ballard Ltd., [1999] 2
All ER 791, Laws L.J. stated the modern rule as
follows:
“By way of introduction to the issue of
statutory construction I should say that
in my judgment it is nowadays
misleading — and perhaps it always
was — to seek to draw a rigid distinction
between literal and purposive
approaches to the interpretation of Acts
of Parliament. The difference between
purposive and literal construction is in
truth one of degree only. On received
doctrine we spend our professional lives
construing legislation purposively,
inasmuch as we are enjoined at every
turn to ascertain the intention of
Parliament. The real distinction lies in
the balance to be struck, in the
particular case, between the literal
meaning of the words on the one hand
and the context and purpose of the
measure in which they appear on the
other. Frequently there will be no
opposition between the two, and then no
difficulty arises. Where there is a
potential clash, the conventional English
approach has been to give at least very
great and often decisive weight to the
126
literal meaning of the enacting words.
This is a tradition which I think is
weakening, in face of the more
purposive approach enjoined for the
interpretation of legislative measures of
the European Union and in light of the
House of Lords' decision in Pepper
(Inspector of Taxes) v. Hart [1993] 1 All
E. R. 42, [1993] A.C 593. I will not here
go into the details or merits of this shift
of emphasis; save broadly to recognise
its virtue and its vice. Its virtue is that the
legislator's true purpose may be more
accurately ascertained. Its vice is that
the certainty and accessibility of the law
may be reduced or compromised. The
common law, which regulates the
interpretation of legislation, has to
balance these considerations.”
And in R. (Quintavalle) v. Secretary of State for
Health, [2003] 2 All E.R.113, Lord Steyn put it thus:
“On the other hand, the adoption of a
purposive approach to construction of
statutes generally, and the 1990 Act in
particular, is amply justified on wider
grounds. In Cabell v Markham (1945)
148 F 2d 737 at 739 Learned Hand J
explained the merits of purposive
interpretation:
‘Of course it is true that the
words used, even in their literal
sense, are the primary, and
ordinarily the most reliable,
source of interpreting the
meaning of any writing: be it a
statute, a contract, or anything
else. But it is one of the surest
indexes of a mature developed
jurisprudence not to make a
127
fortress out of the dictionary; but
to remember that statutes always
have some purpose or object to
accomplish, whose sympathetic
and imaginative discovery is the
surest guide to their meaning.’
The pendulum has swung towards
purposive methods of construction. This
change was not initiated by the
teleological approach of European
Community jurisprudence, and the
influence of European legal culture
generally, but it has been accelerated by
European ideas: see, however, a classic
early statement of the purposive
approach by Lord Blackburn in River
Wear Comrs v Adamson (1877) 2 App
Cas 743 at 763, [1874-80] All ER Rep 1
at 11. In any event, nowadays the shift
towards purposive interpretation is not in
doubt. The qualification is that the
degree of liberality permitted is
influenced by the context, e.g. social
welfare legislation and tax statutes may
have to be approached somewhat
differently. For these slightly different
reasons I agree with the conclusion of
the Court of Appeal that s 1(1) of the
1990 Act must be construed in a
purposive way.” (at 122, 123)
66
We find the same modern view of the law in CIC
Insurance Limited v. Bankstown Football Club
Limited, F.C. (1997) 187 CLR 384, where the High
Court of Australia put it thus:
66
In a recent judgment by a 7 Judge Bench of this Court , the
majority, speaking through Lokur, J., referred to the aforesaid
judgment with approval. See Abhiram Singh v. C.D. Commachen -
2017 (2) SCC 629 at Para 37.
128
“It is well settled that at common law,
apart from any reliance upon 15AB of
the Acts Interpretation Act 1901 (Cth),
the court may have regard to reports of
law reform bodies to ascertain the
mischief which a statute is intended to
cure. [Black-Clawson International
Ltd v Papierwerke Waldhof-
Aschaffenburg [1975] UKHL 2; [1975]
AC 591 at 614, 629, 638; Wacando v
The Commonwealth [1981] HCA 60;
(1981) 148 CLR 1 at 25-26; Pepper v
Hart [1992] UKHL 3; [1993] AC 593 at
630.]. Moreover, the modern approach
to statutory interpretation (a) insists that
the context be considered in the first
instance, not merely at some later stage
when ambiguity might be thought to
arise, and (b) uses "context" in its widest
sense to include such things as the
existing state of the law and the mischief
which, by legitimate means such as
those just mentioned, one may discern
the statute was intended to remedy
[Attorney-General v Prince Ernest
Augustus of Hanover [1957] AC 436
at 461, cited in K & S Lake City
Freighters Pty Ltd v Gordon & Gotch
Ltd [1985] HCA 48; (1985) 157 CLR
309 at 312, 315.]. Instances of general
words in a statute being so constrained
by their context are numerous. In
particular, as McHugh JA pointed out in
Isherwood v Butler Pollnow Pty Ltd.
[(1986) 6 NSWLR 363 at 388.], if the
apparently plain words of a provision are
read in the light of the mischief which
the statute was designed to overcome
and of the objects of the legislation, they
may wear a very different appearance.
Further, inconvenience or improbability
of result may assist the court in
preferring to the literal meaning an
129
alternative construction which, by the
steps identified above, is reasonably
open and more closely conforms to the
legislative intent. [Cooper Brookes
(Wollongong) Pty Ltd v Federal
Commissioner of Taxation (1981) 147
CLR 297 at 320-321].”
24.It is thus clear on a reading of English, U.S.,
Australian and our own Supreme Court judgments
that the ‘Lakshman Rekha’ has in fact been
extended to move away from the strictly literal rule
of interpretation back to the rule of the old English
case of Heydon, where the Court must have
recourse to the purpose, object, text, and context of
a particular provision before arriving at a judicial
result. In fact, the wheel has turned full circle. It
started out by the rule as stated in 1584 in Heydon’s
case, which was then waylaid by the literal
interpretation rule laid down by the Privy Council and
the House of Lords in the mid 1800s, and has come
back to restate the rule somewhat in terms of what
was most felicitously put over 400 years ago in
Heydon’s case.
25.Coming to the statute at hand, it was argued
before us that even though the statute is a
130
beneficial one, it is penal as well, and that therefore
its provisions ought to be strictly construed. Here
again, the modern trend in construing penal statutes
has moved away from a mechanical incantation of
strict construction. In Lalita Jalan v. Bombay Gas
Co. Ltd. and Ors., (2003) 6 SCC 107, this Court
referred to the correct principle of construction of
penal statutes as follows:
“We would like to mention here that the
principle that a statute enacting an
offence or imposing a penalty is to be
strictly construed is not of universal
application which must necessarily be
observed in every case. In Murlidhar
Meghraj Loya v. State of
Maharashtra [(1976) 3 SCC 684 : 1976
SCC (Cri) 493 : AIR 1976 SC 1929]
Krishna Iyer, J. held that any narrow and
pedantic, literal and lexical construction
of food laws is likely to leave loopholes
for the offender to sneak out of the
meshes of law and should be
discouraged and criminal jurisprudence
must depart from old canons defeating
criminal statutes calculated to protect
the public health and the nation's
wealth. The same view was taken in
another case under the Prevention of
Food Adulteration Act in Kisan Trimbak
Kothula v. State of Maharashtra [(1977)
1 SCC 300 : 1977 SCC (Cri) 97 : AIR
1977 SC 435] . In Supdt. and
Remembrancer of Legal Affairs to Govt.
of W.B. v. Abani Maity [(1979) 4 SCC 85
: 1979 SCC (Cri) 902 : AIR 1979 SC
131
1029] the word “may” occurring in
Section 64 of the Bengal Excise Act was
interpreted to mean “must” and it was
held that the Magistrate was bound to
order confiscation of the conveyance
used in commission of the offence.
Similarly, in State of
Maharashtra v. Natwarlal Damodardas
Soni [(1980) 4 SCC 669 : 1981 SCC
(Cri) 98 : AIR 1980 SC 593] with
reference to Section 135 of the Customs
Act and Rule 126-H(2)(d) of the Defence
of India Rules, the narrow construction
given by the High Court was rejected on
the ground that they will emasculate
these provisions and render them
ineffective as a weapon for combating
gold smuggling. It was further held that
the provisions have to be specially
construed in a manner which will
suppress the mischief and advance the
object which the legislature had in view.
The contention raised by learned
counsel for the appellant on strict
interpretation of the section cannot
therefore be accepted.” [para 18]
This was followed in Iqbal Singh Marwah and
Another vs. Meenakshi Marwah and Another ,
(2005) 4 SCC 370 at pages 388 and 389.
26.In fact, interestingly enough, a judgment of
this Court in S. Gopal Reddy vs. State of A.P.,
(1996) 4 SCC 596 construed the Dowry Prohibition
Act, which is undoubtedly a beneficial legislation
containing drastic penal provisions, as follows:
132
“It is a well-known rule of interpretation
of statutes that the text and the context
of the entire Act must be looked into
while interpreting any of the expressions
used in a statute. The courts must look
to the object which the statute seeks to
achieve while interpreting any of the
provisions of the Act. A purposive
approach for interpreting the Act is
necessary. We are unable to persuade
ourselves to agree with Mr. Rao that it is
only the property or valuable security
given at the time of marriage which
would bring the same within the
definition of ‘dowry’ punishable under
the Act, as such an interpretation would
be defeating the very object for which
the Act was enacted. Keeping in view
the object of the Act, “demand of
dowry” as a consideration for a
proposed marriage would also come
within the meaning of the expression
dowry under the Act. If we were to agree
with Mr. Rao that it is only the ‘demand’
made at or after marriage which is
punishable under Section 4 of the Act,
some serious consequences, which the
legislature wanted to avoid, are bound
to follow. Take for example a case where
the bridegroom or his parents or other
relatives make a ‘demand’ of dowry
during marriage negotiations and later
on after bringing the bridal party to the
bride's house find that the bride or her
parents or relatives have not met the
earlier ‘demand’ and call off the
marriage and leave the bride's house,
should they escape the punishment
under the Act. The answer has to be an
emphatic ‘no’. It would be adding insult
to injury if we were to countenance that
their action would not attract the
provisions of Section 4 of the Act. Such
133
an interpretation would frustrate the very
object of the Act and would also run
contrary to the accepted principles
relating to the interpretation of statutes.”
[para 12]
27.A recent judgment, also discussing the
provisions of the Dowry Prohibition Act, is reported
as Rajinder Singh v. State of Punjab, (2015) 6
SCC 477. Discussing the reach of Section 304B of
the Penal Code read with the Dowry Prohibition Act,
this Court has held:
“In order to arrive at the true
construction of the definition of dowry
and consequently the ingredients of the
offence under Section 304-B, we first
need to determine how a statute of this
kind needs to be interpreted. It is
obvious that Section 304-B is a stringent
provision, meant to combat a social evil
of alarming proportions. Can it be
argued that it is a penal statute and,
should, therefore, in case of ambiguity in
its language, be construed strictly?
The answer is to be found in two path-
breaking judgments of this Court. In M.
Narayanan Nambiar v. State of
Kerala [AIR 1963 SC 1116 : (1963) 2 Cri
LJ 186 : 1963 Supp (2) SCR 724] , a
Constitution Bench of this Court was
asked to construe Section 5(1)(d) of the
Prevention of Corruption Act, 1947. In
construing the said Act, a penal statute,
Subba Rao, J. stated: (AIR p. 1118,
para 9)
134
“9. The Preamble indicates that
the Act was passed as it was
expedient to make more effective
provisions for the prevention of
bribery and corruption. The long
title as well as the Preamble
indicate that the Act was passed to
put down the said social evil i.e.
bribery and corruption by public
servant. Bribery is a form of
corruption. The fact that in addition
to the word ‘bribery’ the word
‘corruption’ is used shows that the
legislation was intended to combat
also other evil in addition to
bribery. The existing law i.e. the
Penal Code was found insufficient
to eradicate or even to control the
growing evil of bribery and
corruption corroding the public
service of our country. The
provisions broadly include the
existing offences under Sections
161 and 165 of the Penal Code,
1860 committed by public servants
and enact a new rule of
presumptive evidence against the
accused. The Act also creates a
new offence of criminal
misconduct by public servants
though to some extent it overlaps
on the pre-existing offences and
enacts a rebuttable presumption
contrary to the well-known
principles of criminal
jurisprudence. It also aims to
protect honest public servants
from harassment by prescribing
that the investigation against them
could be made only by police
officials of particular status and by
making the sanction of the
135
Government or other appropriate
officer a pre-condition for their
prosecution. As it is a socially
useful measure conceived in
public interest, it should be
liberally construed so as to bring
about the desired object i.e. to
prevent corruption among public
servants and to prevent
harassment of the honest among
them.
10. A decision of the Judicial
Committee in Dyke v.Elliott, The
Gauntlet [(1872) LR 4 PC 184],
cited by the learned counsel as an
aid for construction neatly states
the principle and therefore may be
extracted: Lord Justice James
speaking for the Board observes
at LR p. 191:
‘… No doubt all penal statutes are
to be construed strictly, that is to
say, the Court must see that the
thing charged as an offence is
within the plain meaning of the
words used, and must not strain
the words on any notion that there
has been a slip, that there has
been a casus omissus, that the
thing is so clearly within the
mischief that it must have been
intended to be included if thought
of. On the other hand, the person
charged has a right to say that the
thing charged, although within the
words, is not within the spirit of the
enactment. But where the thing is
brought within the words and
within the spirit, there a penal
enactment is to be construed, like
any other instrument, according to
136
the fair commonsense meaning of
the language used, and the Court
is not to find or make any doubt or
ambiguity in the language of a
penal statute, where such doubt or
ambiguity would clearly not be
found or made in the same
language in any other instrument.’
In our view this passage, if we may say
so, restates the rule of construction of a
penal provision from a correct
perspective.”
In Standard Chartered
Bank v. Directorate of
Enforcement [Standard Chartered Bank
v. Directorate of Enforcement, (2005) 4
SCC 530 : 2005 SCC (Cri) 961] at pp.
547-48, another Constitution Bench, 40
odd years later, was faced with whether
a corporate body could be prosecuted
for offences for which the sentence of
imprisonment is mandatory. By a
majority of 3:2, the question was
answered in the affirmative.
Balakrishnan, J. held: (SCC paras 23-
24)
“23. The counsel for the appellant
contended that the penal provision
in the statute is to be strictly
construed. Reference was made
to Tolaram Relumal v. State of
Bombay [AIR 1954 SC 496 : 1954
Cri LJ 1333 : (1955) 1 SCR 158] ,
SCR at p. 164 and Girdhari Lal
Gupta v. D.H. Mehta [(1971) 3
SCC 189 : 1971 SCC (Cri) 279] . It
is true that all penal statutes are to
be strictly construed in the sense
that the court must see that the
thing charged as an offence is
137
within the plain meaning of the
words used and must not strain
the words on any notion that there
has been a slip that the thing is so
clearly within the mischief that it
must have been intended to be
included and would have been
included if thought of. All penal
provisions like all other statutes
are to be fairly construed
according to the legislative intent
as expressed in the enactment.
Here, the legislative intent to
prosecute corporate bodies for the
offence committed by them is
clear and explicit and the statute
never intended to exonerate them
from being prosecuted. It is sheer
violence to common sense that
the legislature intended to punish
the corporate bodies for minor and
silly offences and extended
immunity of prosecution to major
and grave economic crimes.
24. The distinction between a strict
construction and a more free one
has disappeared in modern times
and now mostly the question is
‘what is true construction of the
statute?’ A passage in Craies on
Statute Law, 7th Edn. reads to the
following effect:
‘The distinction between a strict
and a liberal construction has
almost disappeared with regard to
all classes of statutes, so that all
statutes, whether penal or not, are
now construed by substantially the
same rules. “All modern Acts are
framed with regard to equitable as
138
well as legal principles.” “A
hundred years ago”, said the court
in Lyons case [R. v. Lyons, 1858
Bell CC 38 : 169 ER 1158] ,
“statutes were required to be
perfectly precise and resort was
not had to a reasonable
construction of the Act, and
thereby criminals were often
allowed to escape. This is not the
present mode of construing Acts of
Parliament. They are construed
now with reference to the true
meaning and real intention of the
legislature.’
At p. 532 of the same book,
observations of Sedgwick are quoted as
under:
‘The more correct version of the doctrine
appears to be that statutes of this class
are to be fairly construed and faithfully
applied according to the intent of the
legislature, without unwarrantable
severity on the one hand or unjustifiable
lenity on the other, in cases of doubt the
courts inclining to mercy.’
Concurring with Balakrishnan, J.,
Dharmadhikari, J. added: (Standard
Chartered Bank case [Standard
Chartered Bank v. Directorate of
Enforcement, (2005) 4 SCC 530 : 2005
SCC (Cri) 961] , SCC pp. 550-51, para
36)
“36. The rule of interpretation
requiring strict construction of
penal statutes does not warrant a
narrow and pedantic construction
of a provision so as to leave
loopholes for the offender to
139
escape (see Murlidhar Meghraj
Loya v. State of
Maharashtra [(1976) 3 SCC 684 :
1976 SCC (Cri) 493] ). A penal
statute has to also be so
construed as to avoid a lacuna
and to suppress mischief and to
advance a remedy in the light of
the rule inHeydon's case [(1584) 3
Co Rep 7a : 76 ER 637] . A
common-sense approach for
solving a question of applicability
of a penal statute is not ruled out
by the rule of strict construction.
(See State of A.P. v. Bathu
Prakasa Rao [(1976) 3 SCC 301 :
1976 SCC (Cri) 395] and also G.P.
Singh on Principles of Statutory
Interpretation, 9th Edn., 2004,
Chapter 11, Synopsis 3 at pp. 754
to 756.)”
And Arun Kumar, J., concurring with
both the aforesaid Judges, followed two
earlier decisions of this Court as follows:
(Standard Chartered Bank
case [Standard Chartered
Bank v. Directorate of Enforcement,
(2005) 4 SCC 530 : 2005 SCC (Cri) 961]
, SCC p. 556, paras 49-50)
“49. Another three-Judge Bench of
this Court in a judgment in Balram
Kumawat v. Union of India [(2003)
7 SCC 628] to which I was a party,
observed in the context of
principles of statutory
interpretation: (SCC p. 635, para
23)
‘23. Furthermore, even in
relation to a penal statute
140
any narrow and pedantic,
literal and lexical
construction may not always
be given effect to. The law
would have to be interpreted
having regard to the subject-
matter of the offence and the
object of the law it seeks to
achieve. The purpose of the
law is not to allow the
offender to sneak out of the
meshes of law. Criminal
jurisprudence does not say
so.’
50. In M.V. Javali v. Mahajan
Borewell & Co. [(1997) 8 SCC 72 :
1997 SCC (Cri) 1239] this Court
was considering a similar situation
as in the present case. Under
Section 278-B of the Income Tax
Act a company can be prosecuted
and punished for offence
committed under Section 276-B;
sentence of imprisonment is
required to be imposed under the
provision of the statute and a
company being a juristic person
cannot be subjected to it. It was
held that the apparent anomalous
situation can be resolved only by a
proper interpretation of the
section. The Court observed:
(SCC p. 78, para 8)
‘8.Keeping in view the
recommendations of the Law
Commission and the above
principles of interpretation of
statutes we are of the
opinion that the only
harmonious construction that
141
can be given to Section 276-
B is that the mandatory
sentence of imprisonment
and fine is to be imposed
where it can be imposed,
namely, on persons coming
under categories (ii) and (iii)
above, but where it cannot
be imposed, namely, on a
company, fine will be the
only punishment.’”
In keeping with these principles,
in K. Prema S. Rao v.Yadla Srinivasa
Rao [(2003) 1 SCC 217 : 2003 SCC
(Cri) 271] , this Court said: (SCC p. 228,
para 27)
“27. The legislature has by
amending the Penal Code and the
Evidence Act made penal law
more strident for dealing with and
punishing offences against
married women.”
In Reema
Aggarwal v. Anupam [(2004) 3 SCC 199
: 2004 SCC (Cri) 699] , in construing the
provisions of the Dowry Prohibition Act,
in the context of Section 498-A, this
Court applied the mischief rule made
immortal by Heydon's case [(1584) 3 Co
Rep 7a : 76 ER 637] and followed Lord
Denning's judgment in Seaford Court
Estates Ltd. v. Asher[(1949) 2 KB 481 :
(1949) 2 All ER 155 (CA)] , where the
learned Law Lord held: (Seaford Court
Estates Ltd. case[(1949) 2 KB 481 :
(1949) 2 All ER 155 (CA)] , KB p. 499)
“… He must set to work on the
constructive task of finding the
intention of Parliament, and he
142
must do this not only from the
language of the statute, but also
from a consideration of the social
conditions which gave rise to it
and of the mischief which it was
passed to remedy, and then he
must supplement the written word
so as to give “force and life” to the
intention of the legislature.”
(Reema Aggarwal case [(2004) 3
SCC 199 : 2004 SCC (Cri) 699] ,
SCC p. 213, para 25)
(emphasis in original)
The Court gave an expansive meaning
to the word “husband” occurring in
Section 498-A to include persons who
entered into a relationship with a woman
even by feigning to be a husband. The
Court held: ( Reema Aggarwal
case [(2004) 3 SCC 199 : 2004 SCC
(Cri) 699] , SCC p. 210, para 18)
“18. … It would be appropriate to
construe the expression ‘husband’
to cover a person who enters into
marital relationship and under the
colour of such proclaimed or
feigned status of husband subjects
the woman concerned to cruelty or
coerces her in any manner or for
any of the purposes enumerated
in the relevant provisions—
Sections 304-B/498-A, whatever
be the legitimacy of the marriage
itself for the limited purpose of
Sections 498-A and 304-B IPC.
Such an interpretation, known and
recognised as purposive
construction has to come into play
in a case of this nature. The
absence of a definition of
143
‘husband’ to specifically include
such persons who contract
marriages ostensibly and cohabit
with such woman, in the purported
exercise of their role and status as
‘husband’ is no ground to exclude
them from the purview of Section
304-B or 498-A IPC, viewed in the
context of the very object and aim
of the legislations introducing
those provisions.”
Given that the statute with which we
are dealing must be given a fair,
pragmatic, and common sense
interpretation so as to fulfil the object
sought to be achieved by Parliament,
we feel that the judgment in Appasaheb
case [Appasaheb v. State of
Maharashtra, (2007) 9 SCC 721(2007) 9
SCC 721 : (2007) 3 SCC (Cri) 468]
followed by the judgment of Vipin
Jaiswal [Vipin Jaiswal v. State of A.P.,
(2013) 3 SCC 684 : (2013) 2 SCC (Cri)
15] do not state the law correctly. We,
therefore, declare that any money or
property or valuable security demanded
by any of the persons mentioned in
Section 2 of the Dowry Prohibition Act,
at or before or at any time after the
marriage which is reasonably connected
to the death of a married woman, would
necessarily be in connection with or in
relation to the marriage unless, the facts
of a given case clearly and
unequivocally point otherwise.” [Paras
13 to 20]
28.In the case of the Employees’ Provident
Funds & Miscellaneous Provisions Act, 1952, again
a beneficial legislation with dire consequences to
144
those who breach it, this Court construed a penalty
provision in the said statute by adopting a purposive
approach. Thus, in N.K. Jain v. C.K. Shah, (1991)
2 SCC 495, this Court said:
“Relying on the aforesaid principles
governing the construction of the penal
statute Shri P. Chidambaram, learned
counsel for the appellants submitted that
the provisions of Section 14(2-A) and
Section 17(4) should reasonably be
construed and if so construed Section
14(2-A) becomes inapplicable to the
facts of the case on hand. It is true that
all the penal statutes should be
construed strictly and the court must see
that the thing charged as an offence is
within the plain meaning of the words
used but it must also be borne in mind
that the context in which the words are
used is important. The legislative
purpose must be noted and the statute
must be read as a whole. In our view
taking into consideration the object
underlying the Act and on reading
Sections 14 and 17 in full, it becomes
clear that cancellation of the exemption
granted does not amount to a penalty
within the meaning of Section 14(2-A).
As already noted these provisions which
form part of the Act, which is a welfare
legislation are meant to ensure the
employees the continuance of the
benefits of the provident fund. They
should be interpreted in such a way so
that the purpose of the legislation is
allowed to be achieved
(vide International Ore and Fertilizers
(India) Pvt. Ltd. v. Employees' State
145
Insurance Corporation [(1987) 4 SCC
203 : 1987 SCC (L&S) 391 : AIR 1988
SC 79] ). In Seaford Court Estates Ltd.
v. Asher [(1949) 2 All ER 155 (CA)] ,
Lord Denning, L.J. observed: (All ER p.
164)
“The English language is not an
instrument of mathematical precision.
Our literature would be much the poorer
if it were. This is where the draftsmen of
Acts of Parliament have often been
unfairly criticised. A judge, believing
himself to be fettered by the supposed
rule that he must look to the language
and nothing else, laments that the
draftsmen have not provided for this or
that, or have been guilty of some or
other ambiguity. It would certainly save
the judges trouble if Acts of Parliament
were drafted with divine prescience and
perfect clarity. In the absence of it, when
a defect appears, a judge cannot simply
fold his hands and blame the draftsman.
He must set to work on the constructive
task of finding the intention of
Parliament, and he must do this not only
from the language of the statute, but
also from a consideration of the social
conditions which gave rise to it and of
the mischief which it was passed to
remedy, and then he must supplement
the written word so as to give ‘force and
life’ to the intention of the legislature ….
A judge should ask himself the question
how, if the makers of the Act had
themselves come across this ruck in the
texture of it, they would have
straightened it out? He must then do so
as they would have done. A judge must
not alter the material of which the Act is
woven, but he can and should iron out
the creases.”
146
(emphas
is supplied)
Therefore in a case of this nature, a
purposive approach is necessary.
However, in our view the interpretation
of the word ‘penalty’ used in Section
14(2-A) does not present any difficulty
and cancellation is not a punishment
amounting to penalty within the meaning
of this section.”
29. Bearing in mind that the Act with which we
are concerned is a beneficial/penal legislation, let us
see whether we can extend the definition of “child”
in Section 2(1)(d) thereof to include persons below
the mental age of 18 years.
30.The Statement of Objects and Reasons of the
2012 Act is set out hereunder:
“STATEMENT OF OBJECTS AND
REASONS
Article 15 of the Constitution, inter alia,
confers upon the State powers to make
special provision for children. Further,
Article 39, inter alia, provides that the
State shall in particular direct its policy
towards securing that the tender age of
children are not abused and their
childhood and youth are protected
against exploitation and they are given
facilities to develop in a healthy manner
and in conditions of freedom and dignity.
2.The United Nations Convention on
the Rights of Children, ratified by India
on 11
th
December, 1992, requires the
147
State Parties to undertake all
appropriate national, bilateral and
multilateral measures to prevent (a) the
inducement or coercion of a child to
engage in any unlawful sexual activity;
(b) the exploitative use of children in
prostitution or other unlawful sexual
practices; and (c) the exploitative use of
children in pornographic performances
and materials.
3.The data collected by the National
Crime Records Bureau shows that there
has been increase in cases of sexual
offences against children. This is
corroborated by the ‘Study on Child
Abuse: India 2007’ conducted by the
Ministry of Woman and Child
Development. Moreover, sexual
offences against children are not
adequately addressed by the existing
laws. A large number of such offences
are neither specifically provided for nor
are they adequately penalized. The
interests of the child, both as a victim as
well as a witness, need to be protected.
It is felt that offences against children
need to be defined explicitly and
countered through commensurate
penalties as an effective deterrence.
4.It is, therefore, proposed to enact
a self contained comprehensive
legislation inter alia to provide for
protection of children from the offences
of sexual assault, sexual harassment
and pornography with due regard to
safeguarding the interest and well being
of the child at every stage of the judicial
process, incorporating child-friendly
procedures for reporting, recording of
evidence, investigation and trial of
offences and provision for establishment
148
of Special Courts for speedy trial of such
offences.
5.The Bill would contribute to
enforcement of the right of all children to
safety, security and protection from
sexual abuse and exploitation.
6.The notes on clauses explain in
detail the various provisions contained
in the Bill.
7.The Bill seeks to achieve the
above objectives.”
Para 1 of the Statement of Objects and
Reasons makes it clear that the Act’s reach is only
towards the protection of children, as ordinarily
understood. The scope of the Act is to protect their
“childhood and youth” against exploitation and to
see that they are not abused in any manner.
31.Section 2(1)(d), with which we are directly
concerned, is set out as under :
“2. Definitions : (1) In this Act, unless the
context otherwise requires, —
(a) xxxxxx xxx
(b) xxxxxx xxx
(c) xxxxxx xxx
(d) "child" means any person below the age of
eighteen years.”
One look at this definition would show that it is
exhaustive, and refers to “any person” an elastic
149
enough expression, below the age of 18 years.
“Year” is defined under the General Clauses Act as
follows:
“3(66). “year” shall mean a year
reckoned according to the British
calendar.”
This coupled with the word “age” would make
it clear that what is referred to beyond any
reasonable doubt is physical age only.
32.Section 5(k) makes this further clear when it
states:
“5. Aggravated penetrative sexual
assault –
(a) to (j)xxxxxxxxx
(k)whoever, taking advantage of a
child’s mental or physical disability,
commits penetrative sexual assault on
the child.”
It will be seen that when mental disability is
spoken of, it is expressly mentioned by the statute,
and what is mentioned is a “child’s” mental disability
and not an adult’s.
33.That a child alone is referred to under the
other provisions of the Act is further made clear by
Section 13(a), which reads as under:
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“13.Use of child for pornographic
purposes. - Whoever, uses a child in
any form of media (including programme
or advertisement telecast by television
channels or internet or any other
electronic form or printed form, whether
or not such programme or
advertisement is intended for personal
use or for distribution), for the purposes
of sexual gratification, which includes—
(a) representation of the sexual organs
of a child.”
Obviously, the sexual organs of a child cannot
ever be the sexual organs of an adult, whose
mental age may be less than 18 years.
34.Again, when we come to Section 27(3) of the
Act, it is clear that the Act refers only to children, as
commonly understood. Section 27(3) of the 2012
Act reads as under :
“27. Medical examination of a child. –
(1) xxx xxx xxx
(2)xxxxxxxxx
(3) The medical examination shall be
conducted in the presence of the parent
of the child or any other person in whom
the child reposes trust or confidence.”
35.Section 39 again throws some light on this
knotty problem. The said Section reads as under :
151
“39. Guidelines for child to take
assistance of experts, etc. - Subject to
such rules as may be made in this
behalf, the State Government shall
prepare guidelines for use of non-
governmental organisations,
professionals and experts or persons
having knowledge of psychology, social
work, physical health, mental health and
child development to be associated with
the pre-trial and trial stage to assist the
child.”
Here again, “physical health” and “mental
health” are juxtaposed with the expression “child
development”, and again, therefore, refer only to the
physical and mental age of a child and not an adult.
36.A reading of the Act as a whole in the light of
the Statement of Objects and Reasons thus makes
it clear that the intention of the legislator was to
focus on children, as commonly understood i.e.
persons who are physically under the age of 18
years. The golden rule in determining whether the
judiciary has crossed the Lakshman Rekha in the
guise of interpreting a statute is really whether a
Judge has only ironed out the creases that he found
in a statute in the light of its object, or whether he
has altered the material of which the Act is woven.
152
In short, the difference is the well-known
philosophical difference between “is” and “ought”.
Does the Judge put himself in the place of the
legislator and ask himself whether the legislator
intended a certain result, or does he state that this
must have been the intent of the legislator and
infuse what he thinks should have been done had
he been the legislator. If the latter, it is clear that the
Judge then would add something more than what
there is in the statute by way of a supposed
intention of the legislator and would go beyond
creative interpretation of legislation to legislating
itself. It is at this point that the Judge crosses the
Lakshman Rekha and becomes a legislator, stating
what the law ought to be instead of what the law is.
37.A scrutiny of other statutes in pari materia
would bring this into sharper focus. The Medical
Termination of Pregnancy Act, 1971, again brings
into sharp focus the distinction between “mentally ill
persons” and “minors”. Sections 2(b), (c) of the said
Act are as follows:-
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“2. Definitions.-In this Act, unless
the context otherwise requires,-
(a) xxxxxxxxx
(b) "mentally ill person” means a person
who is in need of treatment by reason of
any mental disorder other than mental
retardation.
(c) "minor" means a person who, under
the provisions of the Indian Majority Act,
1875 (9 of 1875), is to be deemed not to
have attained his majority.”
38.Section 3(4)(a) of the 1971 Act reads as under
:
“3. When pregnancies may be
terminated by registered medical
practitioners. –
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) (a) No pregnancy of a woman, who
has not attained the age of eighteen
years, or, who, having attained the age
of eighteen years, is a mentally ill
person, shall be terminated except with
the consent in writing of her guardian.”
This provision again makes it clear that when
“the age of 18 years” occurs in a statute, it has
reference only to physical age. The distinction
154
between a woman who is a minor and an adult
woman who is mentally ill is again brought into
sharp focus by the statute itself. It must, therefore,
be held that Parliament, when it made the 2012 Act,
was fully aware of this distinction, and yet chose to
protect only children whose physical age was below
18 years.
39.The same result is reached if we peruse
certain provisions of the Mental Healthcare Act,
2017. Sections 2(s), 2(t), 14 and 15 of the said Act
are as under:
2(s)“mental illness” means a
substantial disorder of thinking, mood,
perception, orientation or memory that
grossly impairs judgment, behaviour,
capacity to recognise reality or ability to
meet the ordinary demands of life,
mental conditions associated with the
abuse of alcohol and drugs, but does
not include mental retardation which is a
condition of arrested or incomplete
development of mind of a person,
specially characterised by subnormality
of intelligence;
2(t)“minor” means a person who has
not completed the age of eighteen
years;
14 (1) Notwithstanding anything
contained in clause (c) of sub-section
(1) of section 5, every person who is not
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a minor, shall have a right to appoint a
nominated representative.
(2) The nomination under sub-section
(1) shall be made in writing on plain
paper with the person’s signature or
thumb impression of the person referred
to in that sub-section.
(3) The person appointed as the
nominated representative shall not be a
minor, be competent to discharge the
duties or perform the functions assigned
to him under this Act, and give his
consent in writing to the mental health
professional to discharge his duties and
perform the functions assigned to him
under this Act.
(4) Where no nominated representative
is appointed by a person under sub-
section (1), the following persons for the
purposes of this Act in the order of
precedence shall be deemed to be the
nominated representative of a person
with mental illness, namely:––
(a) the individual appointed as the
nominated representative in the
advance directive under clause (c) of
sub-section (1) of section 5; or
(b) a relative, or if not available or not
willing to be the nominated
representative of such person; or
(c) a care-giver, or if not available or not
willing to be the nominated
representative of such person; or
(d) a suitable person appointed as such
by the concerned Board; or
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(e) if no such person is available to be
appointed as a nominated
representative, the Board shall appoint
the Director, Department of Social
Welfare, or his designated
representative, as the nominated
representative of the person with mental
illness:
Provided that a person
representing an organisation registered
under the Societies Registration Act,
1860 or any other law for the time being
in force, working for persons with mental
illness, may temporarily be engaged by
the mental health professional to
discharge the duties of a nominated
representative pending appointment of a
nominated representative by the
concerned Board.
(5) The representative of the
organisation, referred to in the proviso to
sub-section (4), may make a written
application to the medical officer in-
charge of the mental health
establishment or the psychiatrist in-
charge of the person’s treatment, and
such medical officer or psychiatrist, as
the case may be, shall accept him as
the temporary nominated
representative, pending appointment of
a nominated representative by the
concerned Board.
(6) A person who has appointed
any person as his nominated
representative under this section may
revoke or alter such appointment at any
time in accordance with the procedure
laid down for making an appointment of
nominated representative under sub-
section (1).
157
(7) The Board may, if it is of the
opinion that it is in the interest of the
person with mental illness to do so,
revoke an appointment made by it under
this section, and appoint a different
representative under this section.
(8) The appointment of a
nominated representative, or the
inability of a person with mental illness
to appoint a nominated representative,
shall not be construed as the lack of
capacity of the person to take decisions
about his mental healthcare or
treatment.
(9) All persons with mental illness
shall have capacity to make mental
healthcare or treatment decisions but
may require varying levels of support
from their nominated representative to
make decisions.
15. (1) Notwithstanding anything
contained in section 14, in case of
minors, the legal guardian shall be their
nominated representative, unless the
concerned Board orders otherwise
under sub-section (2).
(2) Where on an application made
to the concerned Board, by a mental
health professional or any other person
acting in the best interest of the minor,
and on evidence presented before it, the
concerned Board is of the opinion
that,––
(a) the legal guardian is not acting
in the best interests of the minor; or
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(b) the legal guardian is otherwise
not fit to act as the nominated
representative of the minor,
it may appoint, any suitable individual
who is willing to act as such, the
nominated representative of the minor
with mental illness:
Provided that in case no individual
is available for appointment as a
nominated representative, the Board
shall appoint the Director in the
Department of Social Welfare of the
State in which such Board is located, or
his nominee, as the nominated
representative of the minor with mental
illness.”
A perusal of the provisions of the Mental
Healthcare Act would again show that a distinction
is made between a mentally ill person and a minor.
Under Section 14, every person who is not a minor
shall have the right to appoint a nominated
representative, whereas under Section 15, in case
of minors, the legal guardian shall be their
nominated representative unless the concerned
Board orders otherwise, if grounds are made out
under sub-section (2).
159
40.Similarly, the Rights of Persons with
Disabilities Act, 2016 maintains the selfsame
distinction. Sections 2(s), 4, 9, 18 and 31 of the
said Act read as under:
“2.Definitions. – In this Act, unless
the context otherwise requires -
(a) to (r) xxx xxxxxx
(s)“person with disability” means a
person with long term physical, mental,
intellectual or sensory impairment
which, in interaction with barriers,
hinders his full and effective participation
in society equally with others.”
“4.Women and children with
disabilities - (1) The appropriate
Government and the local authorities
shall take measures to ensure that the
women and children with disabilities
enjoy their rights equally with others.
(2) The appropriate Government and
local authorities shall ensure that all
children with disabilities shall have right
on an equal basis to freely express their
views on all matters affecting them and
provide them appropriate support
keeping in view their age and disability.”
“9.Home and family - (1) No child
with disability shall be separated from
his or her parents on the ground of
disability except on an order of
competent court, if required, in the best
interest of the child.
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(2) Where the parents are unable to
take care of a child with disability, the
competent court shall place such child
with his or her near relations, and failing
that within the community in a family
setting or in exceptional cases in shelter
home run by the appropriate
Government or non-governmental
organisation, as may be required.”
“18.Adult education - The
appropriate Government and the local
authorities shall take measures to
promote, protect and ensure
participation of persons with disabilities
in adult education and continuing
education programmes equally with
others.”
“31.Free education for children with
benchmark disabilities. - (1)
Notwithstanding anything contained in
the Rights of Children to Free and
Compulsory Education Act, 2009, every
child with benchmark disability between
the age of six to eighteen years shall
have the right to free education in a
neighbourhood school, or in a special
school, of his choice.
(2) The appropriate Government and
local authorities shall ensure that every
child with benchmark disability has
access to free education in an
appropriate environment till he attains
the age of eighteen years.”
A perusal of the aforesaid Sections would
show that children with disabilities are dealt with
separately and differently from persons with
161
disabilities. Thus, Sections 4, 9 and 31 give certain
rights to children with disabilities as opposed to the
other provisions, in particular Section 18, which
speaks of adult education and participation thereof
by persons with disabilities, obviously referring to
persons who are physically above 18 years of age.
41.As a contrast to the 2012 Act with which we
are concerned, the National Trust for Welfare of
Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999
would make it clear that whichever person is
affected by mental retardation, in the broader
sense, is a “person with disability” under the Act,
who gets protection. The Statement of Objects and
Reasons of the said Act reads as under:
“STATEMENT OF OBJECTS AND
REASONS
The Government of India has
become increasingly concerned about
the need for affirmative action in favour
of persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple
Disability.
2.In acknowledgement of a wide
range of competencies among these
individuals, the Central Government
162
seeks to set up a National Trust to be
known as a National Trust for Welfare of
Persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple
Disability. The said Trust will be
promotive, proactive and protectionist in
nature. It will seek primarily to uphold
the rights, promote the development and
safeguard the interests of persons with
Autism, Cerebral Palsy, Mental
Retardation and Multiple Disability and
their families.
3.Towards this goal, the National
Trust will support programmes which
promote independence, facilitating
guardianship where necessary and
address the concerns of those special
persons who do not have their family
support. The Trust will seek to
strengthen families and protect the
interest of persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple
Disability after the death of their parents.
4.The Trust will be empowered to
receive grants, donations, benefactions,
bequests and transfers. The Central
Government will make a one-time
contribution of rupees one hundred
crores to the corpus of the Trust to
enable it to discharge its responsibilities.
5.The Bill seeks to achieve the
aforesaid objectives.”
Relevant provisions of this Act are Sections
2(g), 2(j), 14(1) and 17(1), and the same are
reproduced as under:
163
“2.Definitions. – In this Act, unless
the context otherwise requires -
(a) to (f)xxxxxxxxx
(g) “mental retardation” means a
condition of arrested or incomplete
development of mind of a person which
is specially characterised by sub-
normality of intelligence;
(h) & (i) xxxxxx xxx
(j) “persons with disability” means a
person suffering from any of the
conditions relating to autism, cerebral
palsy, mental retardation or a
combination of any two or more of such
conditions and includes a person
suffering from severe multiple disability.”
“14. Appointment for guardianship.—
(1) A parent of a person with disability or
his relative may make an application to
the local level committee for
appointment of any person of his choice
to act as a guardian of the persons with
disability.”
“17. Removal of guardian. —(1)
Whenever a parent or a relative of a
person with disability or a registered
organisation finds that the guardian is—
(a) abusing or neglecting a person with
disability; or
(b) misappropriating or neglecting the
property,
it may in accordance with the prescribed
procedure apply to the committee for the
removal of such guardian.”
164
A reading of the Objects and Reasons of the
aforesaid Act together with the provisions contained
therein would show that whatever is the physical
age of the person affected, such person would be a
“person with disability” who would be governed by
the provisions of the said Act. Conspicuous by its
absence is the reference to any age when it comes
to protecting persons with disabilities under the said
Act.
42.Thus, it is clear that viewed with the lens of
the legislator, we would be doing violence both to
the intent and the language of Parliament if we were
to read the word “mental” into Section 2(1)(d) of the
2012 Act. Given the fact that it is a beneficial/penal
legislation, we as Judges can extend it only as far
as Parliament intended and no further. I am in
agreement, therefore, with the judgment of my
learned brother, including the directions given by
him.
……………………… J.
(R.F. Nariman)
New Delhi;
July 21, 2017.
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