IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P. (CRL) No.964/2017

IN THE MATTER OF

FARHAN …Petitioner

VERSUS

STATE & ANR. ..Respondent

INDEX NDOH: 10.01.2022

S. No. PARTICULARS PAGE NO.

.1. Written Submissions on behalf of GNCTD 1–5

2. Saroj Rani vs. Sudarshan Kumar 1985 SCR (1) 303

6 - 19
3. Kusum Lata Vs Kanta Prasad
(AIR 1965 Allahabad 280) 20 - 28

4. A Vs B (Decided on 23rd April 1984 by Gujrat High

29 - 36
Court)
5. Smt. Veena Danilal Vs Sunil Danial
37 -38
(1991 Law Suit (Raj) 431)
6. B Vs S
39 - 42
(1 (1997) DMC 620)
7. Vinit H. Joglekar Vs Vaishali Vinit Joglekar
43-44
(AIR 1998 BOM 73)
8. Sakshi Vs Union Of India & Ors.
45- 74
(2004 5 SCC 518)
9. Supreme Court Woman Lawyers Association
75 - 83
(SCWL) Vs. Union of India vs. [(2016)3 SCC 680]
10. Ms Eera Through Dr. Manjula Krippendorf Vs State 84- -248

Through
 Nandita Rao
Advocate
RD
New Delhi B5 /140 3 Floor Safdarjung Enclave,
Date: 10.01.2022 New Delhi-110029
Mob No.9999031918
Email: knanditarao@gmail.com
 1

IN THE HIGH COURT OF DELHI AT NEW DELHI

WP (CRL) 964/2017

FARHAN VERSUS RESPONDENTS

WRITTEN SUBMISSION ON BEHALF OF GOVERNMENT OF NCT OF

DELHI

MOST RESPECTFULLY SHOWETH:

1. The legal issues that arise for determination by this Hon’ble Court in the

context of the present Petitions are ;

(a) Whether Exception 2 of Section 375 of the Indian Penal Code is ultra

vires Article 21 & 14 of the Constitution of India?

(b) Weather striking down exception 2 of Section 375 IPC would constitute

the creation of a New Offence?

Is there a violation of Article 21 ?

2. It is settled law that bodily integrity of all human beings is intrinsic to Article

21 of the Constitution of India. Article 21 is a negative covenant on the State,

at its heart, and therefore any law that compels a married women to have

sexual intercourse against her will or without her consent with her husband

would be ultra vires Article 21 ? Therefore the Hon’ble Court has to test

weather the existence of the exception to Section 375 creates such a

situation?

3. It is humbly submitted that exception to Section 375, while not criminalizing

the act of unwilling intercourse with a spouse does not compel a wife to

remain with or have sexual intercourse against her will with her husband. She

has the remedy of divorce on the grounds of cruelty ( under Personal Law)

and she has a right to register a criminal case under Section 4988 A of the

Indian Penal Code on the grounds of cruelty. Depending on the allegations,

criminal offence for sexual assault, are also covered under 493 IPC, ,Section

376 B IPC & 377 of the Indian Penal Code. Neither personal law nor Section

498 A IPC or Section 377 IPC create any exception to sexual cruelty as a

grounds for divorce or prosecution, thus it cannot be argued that the

 2

existence of exception 2 to Section 375 of the Indian Penal Code is violative

of Article 21 of the Constitution of India or force a women to have sexual

intercourse against her will.

4. The Supreme Court while dealing with the issue of the Constitutional validity

of Section 9 of the Hindu Marriage Act, providing the relief of “Restitution

of Conjugal Rights to a spouse”, held the Section not to be ultravires of the

Constitution and specifically Article 21, by holding that such a decree of

restitution of Conjugal Rights, cannot be enforced, except by attachment of

property. Thereby unequivocally balancing the right against abandonment

with the right to sexual autonomy, holding that Section 9 of the Hindu

Marriage Act doesn’t give a spouse the right to forced conjugal relations

against the will of the unwilling spouse. Saroj Rani Vs. Sudarshan Kumar

1985 (SCR) (1) 303. The existence of exception 2 of Section 375, therefore

cannot be said to have the effect of forcing a wife to have sexual intercourse

with her husband, as her right to leave has been upheld by the Supreme

Court.

3. In the context of personal law, it is pertinent to mention that infact several

courts have held sexual perversion as cruelty under these laws and have

granted the wife a divorce. In Kusum Lata vs Kampta Prasad [AIR 1965

ALL 280], the Hon’ble High Court of Allahabad has held that “persistence

in inordinate sexual demands or mal practices by either spouse can be

cruelty if it injures the other spouse.” This position was reiterated in A vs. B

(decided on 23rd April 1984 by the Gujarat High Court) wherein at Para

14, it was observed that, “The perverted sexual practices which the wife has

alleged and which she herself did not approve would definitely amount to

physical cruelty. If between the two spouses one spouse wants healthy and

normal sexual relations and the other is desirous of having perverted sexual

relations, such as cunnilingus and fellatio as alleged by the wife in the

present case, then normal sexual relation between the spouses which forms

basis of a happy marital life, would be floundered on the bed-rocks of sexual

 3

aversion on the part of the spouse who is normal and not deviant, and the

insistence of the other spouse who is psychologically so disturbed as not to

enjoy normal sexual relations, would tantamount to physical cruelty.” In

Veena Danial vs. Sunil Danial [1991 LawSuit (Raj) 431], the Hon’ble

High Court of Rajasthan has granted divorce on the ground that the husband

was doing carnal intercourse, which is unnatural under Section 10 of Indian

Divorce Act. This position was reiterated in B Vs. S [I (1997) DMC 620] by

Kerala High Court at Para 8 & 9 and also by Bombay High Court in Vinit

H.Joglekar vs. Vaishali Vinit Joglekar [AIR 1998 BOM 73] at Para 1 &

2.

While marriage creates a mutual obligation between spouses to sexually

satisfy each other. Complete arbitrary denial of sex by either partner gives

the other partner the right to divorce under mental cruelty but certainly not a

right to force sexual intercourse.

5. It is further submitted that the explicit inclusion of Sexual Abuse as an act of

domestic violence under the Protection of Women from Domestic Violence

Act, 2005 reflects the legislative intent that forced sex by a husband with a

wife is not sanctioned in marriage.

The relevant provision is as follows;

Section 3 Explanation I (ii) of the Protection of Women from Domestic

Violence Act:

“Sexual abuse” includes any conduct of a sexual nature that abuses,

humiliates, degrades or otherwise violates the dignity of woman”.

Is there a violation of Article 14 ;

1.The Test of Article 14 is whether there is an intelligible differentiation

between wife and other women in the context of the offence as defined under

Section 375 of the Indian Penal Code.

6. It is humbly submitted that the covenant of marriage is a promise of mental,

physical, financial and sexual companionship. Therefore there is an implicit

willingness presumed between spouses. Section 375 of the Indian Penal Code

and read with section 114 A of the Indian Evidence Act create a reversed
 4

presumption. Putting an onerous burden upon the accused to prove the act did

not occur and/or the willingness/consent of the spouse.

7. Even otherwise under the Indian Penal Code, “ wife” has been treated as a

separate category when it comes to the treatment of domestic violence both

under Section 304B and Section 498A of the Indian Penal Code. Both

offences are only available in a spousal relationship, excluding similarly

placed women in non spousal relationships. Thus it cannot be argued that

there is no intelligible differentia between a spouse and non spouse for the

purpose of criminalizing Violence

8. In several statutes, from the law of maintenance, succession , guardianship,

citizenship the status of a spouse/ wife is different from other female

relatives. Thus making the social and economic consequences of the offence

described under Section 375 upon wife’s different, though the psychological

and physical impact would be the same.

Judiciary is not empowered to create a new offence ?

9. It is submitted that the Hon’ble Supreme Court has laid down in Supreme

Court Women Lawyers Association (SCWLA) vs. Union of India & Anr

[(2016) 3SCC680] that, “the courts neither create offences nor do they

introduce or legislate punishments (at Para 5 to 8 and 14). The same has

been reiterated in Independent Thought vs, Union of India & Anr

[WP(Civil) No. 382 of 2013 decided on 11th October 2017], whereby the

Hon’ble Supreme Court merely harmonized Exception 2 to Section 375 of

the Indian Penal Code with Section 3 and 4 of The Protection of

Children From Sexual Offences Act, 2012 the same Constitutional Adage

is repeated at para 81. It is humbly submitted that in Sakshi vs. Union of

India & Ors. [(2004) 5 SCC 518], when called upon to widen the definition

of Section 375 of the Indian Penal Code, 1860, the Hon’ble Court declined to

do so by holding that it was the prerogative of the legislature (Para 35). Era
 5

through Dr. Manjula Vs Sate Crl. Appeal 1217/ 29/ 207 , the same has been

held vide para

10. Exception 2 of Section 375, does not create an offence of rape qua the

spouse. Quashing the same would create the offence of rape qua spouses,

thus it cannot be said that it would not constitute the creation of a new

offence for a category of the citizenry. Creation of offences by the Judiciary,

apart from being a violation of the Constitutional Scheme , is also a violation

of civil liberties in as much as there can be no test of Article 21 or 14 against

a Judge made law.

The statute in UK & Newyork criminalize sexual assault very differently from
India and in none of the cases the offence between spouses is created by Court .

Nandita Rao
New Delhi Additional Standing Counsel (Crl.)
Date: 11.1.2022 Govt. of NCT of Delhi
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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)

JUDGMENT

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

 85
2

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

 86
3

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

 87
4

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 15th 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 15th 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 27th May, 2015. It
is also informed by the learned APP on
instructions from the investigating officer that
 88
5

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.
 89
6

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

 90
7

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

 91
8

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

 92
9

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

 93
10

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

others1, Mofil Khan & another v. State of

Jharkhand2, Suchita Srivastava & another v.

Chandigarh Administration3, and Tulshidas

Kanolkar v. State of Goa4.

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
 94
11

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 others5, Githa Hariharan (Ms.) and

another v. Reserve Bank of India and another6,

Union of India v. Prabhakaran Vijaya Kumar and

others7, Regional Provident Fund Commissioner v.

Hooghly Mills Company Limited and others8,

Bangalore Turf Club Limited v. Regional Director,

Employees’ State Insurance Corporation9.

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
 95
12

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)

 96
13

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 Ganguli10, Yudhishter v.

Ashok Kumar11, Pratap Singh v. State of Jharkhand

and another12, Directorate of Enforcement v. Deepak

Mahajan and another13.

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
 97
14

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

 98
15

Court ought to adopt the actual grammatical meaning

and for the said purpose, he has drawn inspiration from

Bennion on Statutory Interpretation, 5th 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. Sharpe14 [British

Columbia Court of Appeal], R v. Cockerton15 [Kings

Bench] and Ogg­Moss v. R16 [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
 99
16

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 others17 and Lt. Col. Prithi Pal Singh Bedi etc. v.

Union of India and others18.

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
 100
17

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
 101
18

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
 102
19

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

 103
20

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

 104
21

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)

 105
22

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

 106
23

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

 107
24

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

 108
25

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
 109
26

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;
 110
27

(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
 111
28

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. Markhan19 Learned

19
148 F 2d 737 (2d Cir 1945)
 112
29

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 Health20 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. Adamson21. 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)
 113
30

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 others22 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
 114
31

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.
 115
32

29. In Gurmej Singh v. Pratap Singh Kairon23, 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
 116
33

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 & others24, the Court referred

to a passage from Francis Bennion’s Statutory

Interpretation (1984 edn.) which illustrates the

24
1992 Supp. (2) SCC 351
 117
34

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

 118
35

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 another25, 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
 119
36

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,

 120
37

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

 121
38

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.

 122
39

35. In Commissioner of Income­tax, Madhya

Pradesh v. Shrimati Sodra Devi26 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. Andrews27.

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
 123
40

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
 124
41

“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
 125
42

(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

 126
43

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

 127
44

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 Bihar28 and Umesh Chandra v.

State of Rajasthan29 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
 128
45

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

 129
46

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

Maharashtra30, 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
 130
47

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 others31, 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
 131
48

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

 132
49

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. & others32,

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
 133
50

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 others33, 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
 134
51

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 & others35. 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
 135
52

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.

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53

51. In Central Bank of India v. State of Kerala and

others36, 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
 137
54

52. The Court thereafter referred to the authorities in

Poppatlal Shah v. State of Madras37 and Peerless

General Finance and Investment Co. Ltd. (supra) and

quoted observations of Lord Steyn in R (Westminister

City Council) v. National Asylum Support Service38. 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 & others39, 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
 138
55

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.

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56

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
 140
57

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 others42, 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 others43, the question arose for entertaining

42
AIR 2002 SC 1334
43
(1995) 6 SCC 326
 141
58

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.

 142
59

Management of American Express International

Banking Corporation44 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.
Simmonds45). 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
 143
60

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:

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61

“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 another46, 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 Punia47:

“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
 145
62

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 Madras48 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

others51 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
 146
63

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 Workshop52, 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. Gotla53, 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 another54, it has been

held:

52
(1986) 3 SCC 38
53
(1985) 4 SCC 343
54
(1978) 1 SCC 636
 147
64

“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

 148
65

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

 149
66

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,

 150
67

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

 151
68

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 State55 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
 152
69

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 State56 which took note of the fact

that intermediary was appointed and how he had

56
[2016] ZASCA 10
 153
70

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

 154
71

but also those who were mentally under the age of

eighteen. The Court referred to the decision in

S v Dayimani57 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)
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72

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 others58 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)
 156
73

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
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74

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

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75

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

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76

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

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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.”
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78

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

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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

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80

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

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81

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

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82

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

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83

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.

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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

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85

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

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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
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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

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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

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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
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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
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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

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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

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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”.”
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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.

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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

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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

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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.
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98

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

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99

necessity. In Census Commissioner & others v. R.

Krishnamurthy60, 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 Bacon61 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
 183
100

86. In State of Uttar Pradesh and others v. Subhash

Chandra Jaiswal and others63, 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
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101

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
 185
102

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
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103

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
 187
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

JUDGMENT

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

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105

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.
 189
106

(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:
 190
107

“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
 191
108

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
 192
109

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

 193
110

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:

 194
111

“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.
 195
112

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
 196
113

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
 197
114

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

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115

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

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116

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

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117

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
 201
118

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
 202
119

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.”
 203
120

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
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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.
 205
122

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
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123

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

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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 &

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125

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
 209
126

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
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127

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
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128

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.
 212
129

“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
 213
130

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

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131

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
 215
132

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:

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133

“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
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134

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)
 218
135

“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
 219
136

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
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137

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
 221
138

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
 222
139

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
 223
140

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
 224
141

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
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142

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
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143

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
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144

‘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

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145

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
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146

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.”
 230
147

(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 11th December, 1992, requires the
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148

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
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149

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) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx 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

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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) xxx xxx xxx

(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) xxx xxx xxx

(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 :

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“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.

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153

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) xxx xxx xxx

(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

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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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156

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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157

(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).
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(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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159

(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).

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160

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 xxx xxx

(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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161

(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

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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
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163

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:
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164

“2. Definitions. – In this Act, unless

the context otherwise requires -

(a) to (f) xxx xxx xxx

(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) xxx xxx 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.”
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165

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.