Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1217­1219 OF 2017 [Arising out of S.L.P. (Crl.) Nos. 2640­2642 of 2016]

Ms. Eera                                                            Through Dr. Manjula Krippendorf          ... Appellant(s)

Versus

State (Govt. of NCT of Delhi) & Anr.        …Respondent(s)

J U D G M E N T

Dipak Misra, J.

Leave granted.  

2. The pivotal issue that emanates for consideration in

these appeals, by special leave, pertains to interpretation

of Section 2(d) of the Protection of Children from Sexual

Offences Act, 2012 (for short, “the POCSO Act”), and the

primary argument of the learned counsel for the

appellant is that the definition in Section 2(d) that

defines “child” to mean any person below the age of 18

years, should engulf and embrace, in its connotative

expanse, the “mental age” of a person or the age

determined by the prevalent science pertaining to

psychiatry so that a  mentally retarded person or an

extremely intellectually  challenged person who even has

crossed the biological age of 18 years can be included

within the holistic conception of the term “child”.

3. Before I note the submissions of  Ms. Aishwarya

Bhati, learned counsel for the appellant, the supporting

submissions by the respondent State and the

proponements in oppugnation by the learned senior

counsel who was engaged on behalf of the accused­

respondent No. 2 by the Court as the said respondent

chose not to enter appearance, few facts are essential to

be noted.  The appellant is represented by her mother on

the foundation that she is suffering from Cerebral Palasy

(R. Hemiparesis) and, therefore, though she is

biologically 38 years of age, yet her mental age is

approximately 6 to 8 years. In this backdrop, it is

contended that the trial  has to be held by the Special

Court established under the POCSO Act.   As the facts

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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

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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

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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.   

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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

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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

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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

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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

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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

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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

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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)

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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

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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, 3rd 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

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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

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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

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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

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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

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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

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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

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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)

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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

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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

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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

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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

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opinion of the Special Court the child has suffered loss or injury as a result of that offence.  

(3) Where the Special Court, under sub­section (8) of section  33  of the  Act read  with sub­ sections (2) and (3) of section 357A of the Code of  Criminal Procedure, makes a direction  for the  award  of compensation to the victim, it shall take into account all relevant factors relating to the loss or injury caused to the victim, including the following:­    (i)  type of abuse, gravity of the offence and the severity of the  mental or physical harm or injury suffered by the child;  

(ii)  the expenditure incurred or likely to be incurred on his medical treatment for physical and/or mental health;  

(iii)  loss of educational opportunity as a consequence of the offence, including absence from school due to mental trauma, bodily injury,  medical treatment, investigation and trial of the offence, or any other reason;  

(iv)   loss of employment as a result of the offence, including absence from place of employment due to mental trauma, bodily injury,  medical treatment, investigation and trial of the offence, or any other reason;  

(v)   the relationship of the child to the offender, if any;  

(vi)   whether the abuse was a single isolated incidence or whether the abuse took place over a period of time;  

26

(vii)   whether the child became pregnant as a result of the offence;  

(viii)  whether  the child contracted a sexually transmitted disease (STD)  as  a result  of  the offence;  

(ix)  whether the child contracted human immunodeficiency virus (HIV) as a result of the offence;  

(x)   any disability  suffered by the child as a result of the offence;  

(xi)   financial condition of the child against whom the offence has been committed so as to determine his need for rehabilitation;  

(xii)  any  other factor that the  Special  Court may consider to be relevant.  

(4)  The compensation awarded by the Special Court is to be paid by the State Government from the Victims Compensation Fund or other scheme or fund established by  it  for the purposes  of compensating  and rehabilitating victims under section 357A of the Code of Criminal Procedure or any other laws for the time being in force,  or,  where  such  fund or scheme does not exist, by the State Government.  

(5)  The State Government shall pay the compensation ordered by the Special Court within 30 days of receipt of such order.    (6)  Nothing in these rules shall prevent a child or his parent or guardian or any other person in whom the child has  trust  and confidence from submitting an application for seeking

27

relief under any other rules or scheme of the Central Government or State Government.”

25. I have extracted the relevant provisions of the

POCSO Act and referred to the schematic content in its

perspective context.   The enthusiastic submissions of

Ms. Bhati and the submission advanced in support by

Mr. Dey are meant to urge the Court to adopt the

purposive approach regard being had to the centripodal

interest of the “child” that can, in its connotative

contextual expanse, include a person who has not

mentally grown in age, though may have felt the sketchy

shadow of biological years.   Their accent is not only on

the provisions of the Act but also on the methodology of

computation under the POCSO Act.  

26. Presently, I shall refer to certain authorities as

regards the purposive interpretations and its contours,

for learned counsel for the  appellant  would like  us to

perceive the provision through the said magnified glass

using different lens. In  Cabell v.  Markhan19  Learned

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

28

Hand, J. articulated the merits of purposive

interpretation:   

“Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a  mature and developed jurisprudence not to make a fortress out  of the  dictionary;  but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”

 27.  The  House of Lords in  Regina (Quintavalle) v.

Secretary of State for 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)

29

28.  The above expansion of purposive interpretation

has been approvingly quoted by the majority in Abhiram

Singh v. C.D. Commachen (dead) by legal

representatives and 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

30

of a concept invites a hazard whereas a broad exposition

enlarges the sweep and achieves the statutory purpose.

These are certain abstractions.  It will apply in a different

manner in different statutes, like tax law, penal law,

social  welfare legislation, excise law, election law, etc.

That apart, the law intends to remedy a mischief.  It also

sets goal and has a remedial intent. It also states certain

things which clearly mean what has been said.   In that

case, there is no room for the Judge and solely because

he is a constructionist Judge, cannot possess such tool

to fly in the realm of fanciful area and confer a different

meaning.  His  ability to  create in the  name of judicial

statesmanship is not limitless. It has boundaries.  He

cannot afford to romance all the time with the science of

interpretation.  Keeping these aspects in  mind, I shall

presently refer to some authorities where purposive

construction  has been adopted and  where it has not

been taken recourse to and the cardinal principle for the

same.

31

29. In  Gurmej  Singh v.  Pratap Singh 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

32

submission, the Court held that it is an elementary rule

that construction of a section is to be made of all the

parts together and not of one part only by itself and that

phrases  are to  be  construed  according to the  rules  of

grammar.  Proceeding further, the Court observed that:

“The words “revenue officers”, in whatever sense they are used, cannot obviously comprehend officers who are not revenue officers, and in that situation there is no necessity to exclude such officers from the group of revenue officers. The Legislative device of exclusion is adopted only to exclude a part from the whole, which, but for the exclusion, continues to be part of it. This interpretation must be rejected as it  involves the recognition of words which are surplusage.”

The aforesaid analysis clearly shows that a section

has to be construed in entirety and not of one part only

and further there should be no attempt to recognize

words which are surplusage.  

30. In  State of Himachal Pradesh  & another v.

Kailash Chand Mahajan & others24, the Court referred

to a passage from Francis Bennion’s  Statutory

Interpretation  (1984 edn.) which illustrates the

24  1992 Supp. (2) SCC 351

33

distinction between the legislative intention and the

purpose or object of  the  legislation.  The said passage

reads as follows:

“The distinction between the purpose or object of an enactment and the legislative intention governing it  is that the former relates to the mischief to  which the enactment is  directed and its remedy, while the latter relates to the legal meaning of the enactment.”

31. After reproducing the same, the Court observed

that there  is a great distinction between the two. While

the object of legislation  is to provide a remedy for the

malady, on the contrary, the legislative intention relates

to the  meaning from  the exposition of the remedy  as

enacted. The Court further ruled that for determining the

purpose of legislation,   it is permissible to look into the

circumstances which were prevalent at that time when

the law was enacted and which necessitated the passing

of that enactment and for the limited purpose of

appreciating the background and the antecedent factual

matrix leading to the legislation, it is open to the court to

look into the ‘Statement of Objects and Reasons’ of the

34

Bill which accentuated the statement to provide a

remedy for the then existing malady.   

32. It is  worthy to state here that  where a purposive

construction is conceived of or the said principle is

sought to be applied, the context becomes an important

and influential aspect and when one tries to understand

the legislative intention, the meaning from the exposition

of the purpose or the effort to have the remedy through

the enactment has to be appositely perceived.  

33. In  R.M.D. Chamarbaugwalla and another v.

Union of India and 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

35

building up, arrangement, combination or permutation of

letters,  words  or figures.”  The  question  arose  whether

that applies to prize competition in which success

depends on a substantial degree of skill.   It was

contended before the Court that the language employed

in Section 2(d) being clear and unambiguous, it was not

open to the Court to read into any limitations which are

not there by reference to other and extraneous

considerations.   Dealing with the same, the Court

observed that when a question arises as to the

interpretation to be put on an enactment, what the Court

has to do is to ascertain “the intent of them that make

it”, and that must, of course, be gathered from the words

actually  used in the statute. That,  however, does  not

mean that the decision should rest on a literal

interpretation of the words used in disregard of all other

materials. The Court further opined that “The literal

construction then”, says  Maxwell on  Interpretation of

Statutes, 10th Edn., p. 19, “has, in general, but  prima

facie  preference. To arrive at the real  meaning, it is

always necessary to get an exact conception of the aim,

36

scope and object of the whole Act; to consider, according

to Lord Coke: (1) What was the law before the Act was

passed; (2) What was the mischief or defect for which the

law had not provided; (3) What remedy Parliament has

appointed; and (4) The reason of the remedy”.  Turning to

the history of the  legislation,  various provisions of the

said Act and doctrine of severability, the Court came to

hold that it will not be questioned that competitions in

which success depends to a substantial extent on skill

and competitions in which it does not so depend, form

two distinct and separate categories. The difference

between the two classes of competitions is as clear­cut as

that between commercial and wagering contracts.   The

Court further  held that  whether the  Parliament  would

have enacted the law in question if it had known that it

would fail as regards competitions involving skill, there

can  be  no  doubt,  having regard to the  history  of the

legislation, as to what gives the answer.   Nor does the

restriction of the impugned provisions to competitions of

a gambling character affect either the texture or the

colour  of the  Act;  nor  do  the  provisions  require to  be

37

touched and re­written before they could be applied to

them.  They  will squarely apply to them on their own

terms and in their true spirit, and form a code complete

in themselves with reference to the subject. The

conclusion, the Court said, was that it was inescapable

that the impugned provisions, assuming that they apply

by virtue of the definition in Section 2(d) to all kinds of

competitions, were severable in their application to

competitions in which success did not depend upon any

substantial extent on skill.  

34. The aforesaid authority has identified two clear cut

classes of prize competitions and ultimately applied the

doctrine of severance.  The Court was not persuaded by

the laudable object that the Parliament intended to

control and regulate the prize competition but keeping in

view all  the factors that can legitimately be taken into

account, interpreted the provision.  Thus, the Court was

cautious and only tried to take into account what could

legitimately be taken into consideration.  

38

35.  In  Commissioner of Income­tax, Madhya

Pradesh v. Shrimati Sodra 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  

39

income derived by the wife or a minor child, in the computation of the total income of the male assessee, the husband or the father, as the case may be, for the purpose of assessment.  

 If that was the position, howsoever wide the words “any individual” or “such individual” as used in Section 16(3) and Section 16(3)(a) may appear to be so as to include within their connotation the male as well as the female of the species taken by themselves, these words in the context could only have been meant as restricted  to the male  and not including the female of the species. If these words are used as referring only to the male of the species the whole of the Section 16(3)(a) can be read harmoniously in the manner above comprehending  within its scope  all the four cases specified in sub­clauses (i) to (iv) thereof and so also Section 16(3)(b).

  We are therefore of opinion that the words “any individual”  and “such individual” occurring in Section 16(3) and Section 16(3)(a) of the Act are restricted in their connotation to mean only the male of the species, and do not include the female of the species, even though by a disjunctive reading of the expression “the wife” or “a minor child” of “such individual” in Section 16(3)(a)  and the expression “by such individual” for the benefit of his wife or a minor child or both in Section 16(3)(b), it may be possible in the particular instances of the mothers being connected with the minor children in the manner suggested by the Revenue to include the  mothers also  within the connotation of these words. Such inclusion which involves different interpretations of the words “any individual” or

40

“such individual” in the different contexts could never have been intended by the legislature and would in any event involve the addition  of the  words “as the case  may  be” which addition is not normally permissible in the interpretation of a statute.”

 37. Though the case related to the interpretation of a

taxing statute and not a social welfare legislation, yet the

Court kept in view the surrounding circumstances and

the reasons that led to the passing of the legislation and

further opined that the meaning sought to be placed by

the revenue could not be conceived of without addition of

words which is not normally permissible in the statute. It

had also ruled that the Court should avoid bringing a

particular category within the expansive connotation of

the words used.

38. In  Sheikh Gulfan  (supra), the controversy related

to construction  of  Section  30(c) of the  Calcutta  Thika

Tenancy Act, 1949.  I need not state the facts of the case.

Section 30(c) of the said Act read as follows:  

“Section  30:  Nothing in this  Act  shall  apply to —

x x x x  

41

(c) any land which is required for carrying out any of the provisions of the Calcutta Improvement Act, 1911.”

39. While interpreting the said provision, the Court

observed that the words used in the statute were simple,

but their construction was not easy and in that context,

it held, on a careful consideration and scrutiny of Section

30(c), the inevitable conclusion was that the words used

in  Section  30(c) did  not justify the conclusion that a

private landholder was intended to be equated with

Government or with the other special bodies or

authorities whose lands were exempted from the

operation of the Act by Section 30.   The Court further

ruled that the legislature never intended that the

provisions of the Act should cease to apply to all lands

which were comprised  in  the scheme,  because such a

provision would appear to be inconsistent with the

categories of cases covered by clauses (a) and (b) of

Section 41.   Addressing on the issue of the intention of

the legislature in enacting Section 30(c), the Court held

that it would have been easy for the legislature to say

42

that lands comprised in the improvement schemes

should be exempted from the application of the Act.

Section 30 had provided for an exception to the

application of the beneficent provisions of the Act and it

would not be unreasonable to hold that even if Section

30(c)  was reasonably capable of the construction, the

Court should prefer the alternative construction which is

also reasonably possible. In construing the provisions

which provide for exceptions to the applicability of

beneficent legislation, if two constructions are reasonably

possible, the Court would be justified in preferring that

construction  which helps to carry out the beneficent

purpose of the Act and does not unduly expand the area

or the scope of the exception.   

40.  On a proper analysis of the aforesaid authority, it

is clear as crystal that when two constructions are

reasonably possible, preference should go to one which

helps to carry out the beneficent purpose of the Act; and

that apart, the said interpretation should not unduly

expand the scope of a provision.  Thus, the Court has to

be careful and cautious  while adopting  an  alternative

43

reasonable interpretation. The acceptability of the

alternative reasonable construction should be within the

permissible ambit of the Act.  To elaborate, introduction

of theory of balance cannot be on thin air and in any

case, the Courts, bent with the idea to engulf a concept

within the statutory parameters, should  not pave the

path  of expansion that the  provision  by so stretch  of

examination envisages.  

41. In  Pratap Singh  (supra), the Constitution Bench

was required to resolve the conflicting views between

Arnit Das v. State of 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

44

that provided presumption and determination of age.

Referring to the said Section, it was contended that the

word “is” used in two places of the Section and that the

word “is” suggests that for determination of age of

juvenile the date of production would be the reckoning

date as the inquiry with regard to his age begins from the

date he is brought before the court and not otherwise.

The Court held that the word “is” employed in Section 32

is referable to a juvenile who is said to have committed

an offence on the date of the occurrence.  To arrive at the

said conclusion, the Court ruled that  the legislative

intendment underlying Sections 3 and 26 read with the

preamble, aims and objects of the Act is clearly

discernible and a conjoint reading of the sections,

preamble, aims and objects of the Act leaves no manner

of doubt that the legislature intended to provide

protection, treatment, development and rehabilitation of

neglected or delinquent juveniles and for the

adjudication thereof.  It further proceeded to say that the

whole object of the Act is to provide for the care,

protection, treatment, development and rehabilitation of

45

juveniles and the Act being a benevolent legislation, an

interpretation must be given which would advance the

cause of the legislation, that is, to  give  benefit to the

juveniles.

42. This  decision  has to  be carefully  understood.   It

dissected the provision from  which it  was discernible

that the age of the juvenile is the date of occurrence and

the said construction is in consonance with the

legislative objective. There is neither abnormally

stretched interpretation nor the subject of the Act is read

out of context.   Thus, the context and the exposition of

intention of words in the schematic backdrop struck a

harmonious bond.

43.  In  Shankar Kisanrao Khade v. State of

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

46

either to the local police or to the Juvenile Justice Board,

gave  certain  directions for  compliance in future  which

are necessary to protect the children from such sexual

abuses. The  Court ruled that it  has  a  duty to  do so

because the Court has guardianship over minor children,

especially with regard to the children having intellectual

disability, since they are suffering from legal disability.   

44. I  may hasten to state here that observations and

directions given in the said case are absolutely within the

permissible limits of  Juvenile Justice Act, 2000 and as

well as  CrPC.   Accentuation  on  duty and role of the

Court in the said case do not throw any laser beam or

show the guiding principle for interpreting the definition

of the word “child” as used in Section 2(d) of the POCSO

Act.  

45.  In  Chandra  Mohan v.  State of  Uttar  Pradesh

and 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

47

harmonious working of the Constitution and eschew the

other which will lead to absurdity or give rise to practical

inconvenience or make well established provisions of

existing law nugatory. I have referred to this decision as

it used the words, “give rise to practical inconvenience”.  

46.  In Deepak Mahajan (supra), the Court referred to a

passage from Maxwell on Interpretation of Statutes,

Tenth Edn., at p. 229 which is extracted below:

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure  of the sentence.  … Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used.”

47. The Court also referred to various other decisions

and finally ruled that it is permissible for courts to have

functional approaches and look into the legislative

intention and sometimes it may be even necessary to go

behind the words and enactment and take other factors

48

into consideration to give effect to the legislative

intention and to the purpose and spirit of the enactment

so that no absurdity or practical inconvenience  may

result and the legislative exercise and its scope and

object may not become futile.

48. As the aforesaid statement  would show that the

Court has been inclined to adopt a functional approach

to arrive at the legislative intention.   Needless to

emphasise, there has to be a necessity to do so.  

49.  In  Reserve Bank of  India v.  Peerless General

Finance and Investment Co. Ltd. & 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

49

phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute­maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context.  With  these glasses we must  look at the  Act  as  a  whole  and  discover  what each section, each clause, each  phrase  and each word  is meant and designed to say as to  fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.”

   The aforesaid passage by Chinnappa Reddy, J. had

been referred to and placed reliance upon to appreciate

the context  and the  purpose regard  being  had to the

nature of the text.   The learned Judge has also

emphasized that no words of a statute should be

construed in isolation.

50.  In  Union of India v. Elphinstone Spinning and

Weaving Co. Ltd. and 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

50

is the attitude of Judges in  arriving  at a solution  by

striking a balance between the  letter  and spirit  of the

statute without acknowledging that they have in any way

supplement the statute would be the proper criteria. The

duty of Judges is to expound and not to legislate  is a

fundamental rule. There is, no doubt, a marginal area in

which the courts mould or creatively interpret legislation

and they  are thus finishers, refiners and  polishers of

legislation  which comes to them in a state requiring

varying degrees of further processing. Reference in this

context was made to  Corocraft Ltd. v. Pan American

Airways Inc.34 and  State of Haryana  & others v.

Sampuran Singh  & 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

51

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

53

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

54

by itself, proclaims the legislative intent in unequivocal

terms, the same must be given effect to, regardless of the

consequences that may follow, but if the words used in

the provision are imprecise, protean or evocative or can

reasonably  bear  meanings  more than one, the rule  of

strict grammatical construction ceases to be a sure guide

to reach at the real legislative intent. In such a case, in

order to  ascertain the true  meaning  of the terms and

phrases employed, it is legitimate for the court to go

beyond the arid literal confines of the provision and to

call in  aid  other  well­recognised  rules  of  construction,

such as its legislative history, the basic scheme and

framework of the statute as a whole, each portion

throwing light on the rest, the purpose of the legislation,

the object sought to be achieved, and the consequences

that may flow from the adoption of one in preference to

the other possible interpretation. Thus, the Court in

certain situations allows room to go beyond the confines

of the literal meaning and to take recourse to other aids

for  construction.  Consequence  of  preference  of  one  on

the other also gets accent.  

55

54. In  Kehar Singh & Ors v. State (Delhi Admn.)40,

the Court ruled that the Court should not consider any

provision out  of the  framework of the statute  and not

view the provisions as abstract principles separated from

the motive force behind. It  is the duty of the Court to

consider the  provisions  in the  circumstances to  which

they owe their origin and to ensure coherence and

consistency within the law as a whole and to avoid

undesirable consequences. That apart, the said

adventure, no doubt, enlarges the discretion of the Court

as to interpretation, but it does not imply power to

substitute individual  notions  of legislative intention. It

implies only a power of choice where differing

constructions are  possible and  different  meanings are

available.   As is manifest, the individual notions should

not come in the way of legislative intention.  

55.  In this regard, reference to  Gem Granites v.

Commissioner of Income Tax, T.N.41 would be fruitful.

In the said case, the Court observed that an argument

founded on what is claimed to be the intention of 40 (1988) 3 SCC 609 41 (2005) 1 SCC 289

56

Parliament may have appeal but a court of  law has to

gather the object of the statute from the language used,

but what one may believe or think to be the intention of

Parliament cannot prevail if the language of the statute

does not support that view.   In  Padma Sundara Rao

(Dead) and others v. State of T.N. and 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

57

complaint filed under Section 28(1) of the Maharashtra

Recognition of Trade Union and Prevention of Unfair

Labour Practices Act, 1971. In the said case, the Labour

Court in which the complaints were filed took the view

that such complaints were not maintainable as the

actual orders of discharge or dismissal were not yet

passed by the employer.   The learned single Judge

confirmed that view, but the appellate Bench of the High

Court dislodged the same.   Dealing with the appeal

preferred  by the employer,  while interpreting the said

Act, the Court took note of the background of the Act,

examined the scheme of the enactment and referred to

the preamble in extenso and various other  provisions

and interpreting the words which were used in the

provisions opined that the scheme of the legislation

intends to prevent commission of unfair labour practices

through the intervention of the Court and for that

purpose, the said Act has been enacted. The two­Judge

Bench referred to the decision in Workmen of American

Express International Banking Corporation v.

58

Management of American Express International

Banking  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

59

of the Constitution.  Section 6(a) of the HMG Act reads as

follows:

“6.  Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect of the minor’s person as well  as  in respect of  the minor’s property (excluding his or her undivided interest in joint family property), are—

a) in the case of a boy or an unmarried girl — the father, and after him, the mother: Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;”

Be it noted, in the said case, the Reserve Bank of

India had questioned the authority of the mother, even

when she had acted with the concurrence of the father,

because  in  its  opinion she could  function as guardian

only after the lifetime of the father and not during his

lifetime.   The question arose, what meaning should be

placed ‘after the lifetime’? The Court observed that if this

question is answered in affirmative, the section has to be

struck down as unconstitutional as the same is

undoubtedly violates of gender equality, one of the basic

principles of our Constitution.   Interpreting the said

provision, the Court came to hold that:

60

“16.  While  both  the parents are duty­bound to take care of the person and property of their minor  child  and act in the  best interest  of  his welfare, we hold that in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of  an agreement between him and the mother of the  minor (oral or  written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or  mental incapacity, the  mother can act as natural guardian of the minor and all her actions would be valid even during the lifetime of the father, who would be deemed to be “absent” for the purposes of Section 6(a) of  the HMG Act and Section 19(b) of the GW Act.”

    Be it noted, the said interpretation was placed to

keep the statutes within the constitutional limits.  

58.  Recently, in  Ajitsinh Arjunsinh Gohil v. Bar

Council of  Gujarat and  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

61

natural and probable. And these signs are either the  words, the  context, the  subject­matter, the effects and consequence, or the spirit and reason of the law. See  Commentaries on the Laws of England (facsimile of 1st Edn. of 1765, University of Chicago Press, 1979, Vol. 1, p. 59). Mukherjea, J. as the learned Chief Justice then was, in Poppatlal Shah v. State of 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

62

being had to the purpose behind  it  and hence, the concern with the intention is basically to decipher the meaning of the word that the legislature has placed on it. …”

60. In  Raghunandan Saran Ashok Saran v. Pearey

Lal 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

63

“11. … If the language of a statute is clear and explicit, effect must be given to it, for in such a case the words best declare the intention of the law­giver. It would not be right to refuse to place on the language of the statute the plain and natural meaning which it must bear on the ground that it produces a consequence  which could not have been intended by the legislature. It  is only from the language of the statute that the intention of the Legislature must be gathered, for the legislature  means  no  more  and no  less than what it says. It is  not  permissible to the Court to speculate as to  what the Legislature must have intended and then to twist or bend the language of the statute to make it accord with the presumed intention of the legislature. …”

62. I have referred to the aforesaid authorities to

highlight that legislative intention and the purpose of the

legislation regard being had to the fact that context has

to be appositely appreciated. It  is the foremost duty of

the Court while construing a provision to ascertain the

intention of the legislature, for it is an accepted principle

that the  legislature expresses  itself  with use of  correct

words and in the absence of any ambiguity or the

resultant  consequence does not lead to any absurdity,

there is no room to look for any other aid in the name of

creativity. There is no quarrel over the proposition that

the method of purposive construction has been adopted

64

keeping in view the text and the context of the

legislation, the mischief it intends to obliterate and the

fundamental intention of the legislature when it comes to

social  welfare legislations.   If the  purpose is  defeated,

absurd result is arrived at. The Court need not be

miserly and should have the broad attitude to take

recourse to in supplying a word  wherever necessary.

Authorities referred to  hereinabove encompass various

legislations wherein the legislature intended to cover

various fields and address the issues. While interpreting

a social welfare or beneficent  legislation one has to be

guided by the ‘colour’, ‘content’ and the ‘context of

statutes’ and if it involves human rights, the conceptions

of Procrustean justice and Lilliputtian hollowness

approach should be abandoned. The Judge has to

release himself from the chains of strict linguistic

interpretation and pave the path that serves the soul of

the legislative intention and in that event, he becomes a

real creative constructionist Judge. I have perceived the

approach in Hindustan Lever Ltd. (supra) and Deepak

Mahajan  (supra),  Pratap Singh  (supra) and many

65

others.   I have also analysed where the Court has

declined to follow the said approach as in  R.M.D.

Chamarbaugwalla  (supra) and other decisions.   The

Court has evolved the principle that the legislative

intention must be gatherable from the text, content and

context of the statute and the purposive approach should

help and enhance the functional principle of the

enactment.  That  apart, if  an  interpretation  is likely to

cause inconvenience, it should be avoided, and further

personal  notion  or  belief of the  Judge  as regards the

intention  of the  makers of the statute should  not  be

thought of. And, needless to say, for adopting the

purposive approach there must exist the necessity. The

Judge, assuming the role of creatively constructionist

personality, should not wear any hat of any colour to suit

his thought and idea and drive his thinking process to

wrestle  with  words stretching  beyond a permissible  or

acceptable limit.   That has the potentiality to cause

violence to the language used by the legislature. Quite

apart from, the Court can take aid of  causus  omissus,

66

only in a case of clear necessity and further it should be

discerned from the four corner of the statute. If the

meaning is intelligible, the said principle has no entry. It

cannot be a ready tool in the hands of a Judge to

introduce as and what he desires.  

63. Keeping in view the aforesaid parameters, I am

required to scrutinize whether the content and the

context of the POCSO  Act  would allow space for the

interpretation that  has been canvassed by  the  learned

counsel for the  appellant,  which has  also  got support

from  the  State,  before  us.  The  POCSO Act,  as I  have

indicated earlier, comprehensively deals with various

facets that are likely to offend the physical identity and

mental  condition of  a  child.  The  legislature has dealt

with sexual assault, sexual harassment and abuse with

due regard to safeguard the interest and well being of the

children at every stage of judicial proceeding  in an

extremely detailed manner.   The procedure is child

friendly and the atmosphere as commanded by the

provisions of the POSCO Act has to be congenial.   The

protection of the dignity of the child is the spine of the

67

legislation. It also lays stress on mental physical

disadvantage of a child.   It takes  note of the  mental

disability. The legislature in its wisdom has stipulated a

definition of the “child” which I have noted hereinbefore.

The submission is that the term  “age” should  not  be

perceived through the restricted prism but must be

viewed with the telescope and thereby should include the

mental age.

64. Learned counsel for the appellant has drawn

support from  Daniel Johannes  Stephanus  Van  Der

Bank v. The 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

68

was 19 years old and the State led evidence of a clinical

psychologist who had consulted and conducted tests on

her on several occasions. The evidence was led  with

regard to her  lack of  understanding and various other

aspects. The High Court posed the question with regard

to object of Section 170A (1) of the said Act. Though the

amendment of Section 170A (1) which included the

mental  age had not come into existence, yet the court

accepted the stand  of the  prosecution that the victim

though 19 years of age, could give the assistance of an

intermediary. The aforesaid judgment of the High Court

of South Africa shows that mental age can be considered

by the Court though the relevant amendment in relation

to a crime that had occurred before the amendment

came into force.  

65. The matter travelled to the Supreme Court of

Appeal of South Africa in Daniel Johannes Stephanus

Van Der Bank v. The State56 which took note of the fact

that intermediary was appointed and how he had

56 [2016] ZASCA 10

69

assisted the complainant in testifying.  Leave granted by

the Supreme Court was limited to the following:

“Leave to appeal is limited to the issue whether the complainant’s evidence was inadmissible on the basis that it was given through an intermediary in conflict with the provisions of s 170A of the Criminal Procedure Act as applicable at the time she gave evidence.”

The Supreme Court referred  to  Section 170A.  On

the date the complainant testified, the said Section read

as follows:

“Section 170A. Evidence through intermediaries. — (1) Whenever criminal proceedings are pending before  any  court  and  it  appears to  such court that it would expose any witness under the age of eighteen years to undue mental stress or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.”

 It  was contended  before the  Court that once the

witness reached the age of 18 years, there was no power

or  discretion to invoke  Section  170A.  The  Apex  Court

took note of the subsequent amendment made in 2007

by  Section  68  of Act 32 of 2007 to include  not only

witnesses who were biologically under the age of eighteen

70

but also those who were  mentally under the age of

eighteen. The Court referred to the decision in

S v 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)

71

In the ultimate analysis, the Supreme Court of

Appeal  of  South Africa confirmed the view of the High

Court by holding that the trial court was correct in

rejecting the appellant’s contention that the complainant

had consented to engage in these activities and it  was

known that she was backward with a mental age of far

less than 16 years ­ her biological age in 1999. Moreover,

there was overwhelming evidence on record that she was

incapable of giving required consent.  

66. In Director of Public Prosecutions, Transvaal v.

Minister of Justice and Constitutional Development

and 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)

72

children’s rights.” Courts are bound to give effect to the provisions of section 28(2) in matters that come before them and which involve children. …”

67. The learned counsel for the appellant has

emphasized on the same to bolster the proposition that

the POCSO Act being child friendly and meant for

protecting the dignity of the child regard being had to her

physical and mental or body and mind integrity

interpretation of the term “age”  should include  mental

age so that statute becomes purposively child sensitive.   

68. In  Her Majesty The Queen v. D.A.I.59,  before the

Supreme Court  of  Canada  the  question arose  whether

the trial Judge had incorrectly interpreted the

requirements of Section 16 of the Canada Evidence Act

for the testimonial competence of persons of 14 years of

age or older (adults) with  mental disabilities. Section

16(3) of the said Act imposes two requirements for the

testimonial competence of an adult with mental

disabilities: (1) the ability to communicate the evidence;

and (2) a promise to tell the truth. In the said case, the

59 [2012] 1 RCS 149

73

victim was an adult aged about 26 years and her mental

age was assessed at 6 years old. She was sexually

assaulted.   The trial court acquitted the accused which

was confirmed by the  Court  of  Appeal.  The Supreme

Court of Canada by  majority judgment unsettled the

conclusion of the trial court and the Court of Appeal after

dealing with provisions pertaining to Section 16 of the

Canada Evidence Act as introduced in 1987.   The trial

Judge excluded her evidence and acquitted the accused

which was confirmed by the Court of Appeal, as stated

earlier.  The majority while disagreeing speaking through

the learned  Chief Justice adverted to the principle of

competence to testify,  concept  of  admissibility  and the

responsibility  of the trial  Judge  under the  said  Act to

decide what evidence, if any, to be accepted. Thereafter

reference was made to competence of adult witness with

mental disability and Section 16 which governs

competence  of  adult  witnesses  with  mental  disabilities

was analysed.  A contention was raised that Section 16(3)

should be supplemented by the requirement that an

adult witness with mental disability who cannot take an

74

 Eventually, the majority ruled that the threshold of

reliability for hearsay evidence differs from the threshold

ability to  communicate the  evidence for  competence;  a

ruling  on testimonial capacity cannot  be subsequently

justified by comments in a ruling on hearsay

admissibility.  Had the competence hearing been properly

conducted, this might have changed the balance of the

trial, including the hearing (if any) on hearsay

admissibility.   Ultimately, the Court allowed the appeal

and set aside the acquittal and directed for new trial.

70. I have already dealt with in extenso the decisions as

cited by the learned counsel for the appellant.  The South

African view, as I find, by adopting the interpretative

process justifies the appointment of an intermediary in

respect of an adult woman who is mentally retarded.  It is

a different situation altogether. The rule of evidence

which was not there but amended later on by the

Parliament, the Supreme Court of  South Africa looking

into various aspects of the statute applied the principle of

inherent inclusiveness in the words and interpreted the

provision. The Constitutional Court of South Africa has

78

spoken about the requirement of sensitivity to a child.

Both the aspects, according to me, are distinguishable.

As far as the  majority view of the  Supreme  Court of

Canada is concerned, it interpreted Section 16(3) of the

Canada Evidence Act and appreciated the various

aspects of the evidence tendered by an adult  who is

mentally challenged and has declined to add something

which the Parliament has not envisaged. It has only

elaborated the process of adequate, proper and sensitive

appreciation keeping in view the words used in the

statute.   

71. In this context, a passage from  Tulshidas

Kanolkar (supra) will be appropriate to refer.  In the said

case, the victim of rape was an adult who was a mentally

challenged person and her IQ was not even 1/3rd of what

a normal person has. She had become pregnant, and on

being asked by her parents, as to who was responsible

for her pregnancy, she on her own way pointed out finger

at the  appellant therein.  During the trial, the  accused

indirectly took the stand of consent apart from  other

79

pleas.   The trial court repelled the plea of consent and

found the appellant guilty. In appeal, the  High  Court

negatived the contention raised by the accused­appellant

by upholding the conviction but reduced the sentence to

seven years. Before this Court, it was contended that in

the absence of any other  person  being examined, the

testimony of the prosecutrix could not be placed reliance

upon. The Court analysed the evidence and placed

reliance on the version of the victim and rejected the plea

of consent stating it  as absolutely shallow.   The Court

held that a mentally challenged person cannot give legal

consent which would involve understanding of the effect

of such consent and it has to be a conscious and

voluntary act. A distinction was drawn between “consent”

and “submission” and ruled that every consent involves a

submission but the converse does not follow and an act

of helpless resignation could not be treated as a consent.

Proceeding further, the Court said for constituting

consent there must be exercise of intelligence based on

the knowledge of the significance and the moral effect of

80

the Act.   While parting with the case, the Court added

one aspect which requires to be noted:  

“8. … a few words are necessary to be said about prescription of sentence in a case where a mentally challenged or deficient  woman is the victim. In sub­section (2) of Section 376, clause (f) relates to physical age of a woman under 12 years of age. In such a case sentence higher than that prescribed for one under sub­section (1) is provided for. But what happens in a case when the mental age of the victim is not even 12 years? Such a woman is definitely in a more vulnerable situation. A rapist in such a case in addition to physical ravishment exploits her mental non­ development and helplessness. The legislature would do  well in prescribing higher  minimum sentence in a case of this nature. The gravity of offence in such  case is  more  serious than the enumerated categories indicated in sub­section (2) of Section 376.”

As it seems, the Court left it to the legislature for

prescribing a higher minimum sentence. The said

passage, as I perceive, does not help the proposition

canvassed in the instant case.  

72.  The learned counsel for the appellant has drawn my

attention to various Sections of IPC, namely, Sections 89,

90, 98, 228A, 305, 361 and 491.   Section 89 IPC deals

with  an  act  done in  good faith for  benefit of child  or

insane person by or by consent of guardian. It stipulates

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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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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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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”.”    

93

79. Be it noted, similar distinction has been

maintained in The Rights of Persons with Disabilities Act,

2016. The purpose of referring to the said judgment is

that this Court has kept itself alive to the fact that the

Parliament has always kept the mental retarded person

and mentally ill person in two different compartments.   

80. Mr.  Hegde,   learned senior  counsel  appearing for

respondent No. 2, would contend that degree of mental

retardation or the IQ test may not always be a

determinative factor and, therefore, the principle of casus

omissus would not be applicable to the case at hand.   

81. I have already referred to the judgment of the

Constitution Bench in Padma Sundara Rao  (supra). In

the said case, the Court mentioned the situations where

the principle of casus omissus would be applied. Applying

the said principle,  it can be stated without any fear of

contradiction that the said principle cannot be applied to

the provision that has arisen for consideration.  

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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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84. In this regard, I may profitably refer to Section 164

CrPC which deals with recording of confessions and

statement. Section 164(5A)(b), which is pertinent, reads

as under:

“(b) A statement recorded under clause (a)  of  a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination­in­ chief,  as  specified  in  section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross­examined on such statement, without the need for recording the same at the time of trial.”  

 The purpose of referring to the said provision is to

highlight that the Parliament has legislated to safeguard

the interest of mentally disabled person.  

85. Needless to emphasise that courts sometimes

expand  or stretch the  meaning  of a  phrase  by taking

recourse to purposive interpretation. A Judge can have a

constructionist approach but there is a limitation to his

sense of creativity.   In the instant case,   I am obliged to

state that stretching of the words “age” and “year” would

be encroaching upon the legislative function. There is no

98

necessity. In  Census Commissioner  & others v. R.

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

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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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breathed his last and there is a medical certificate from

AIIMS as regards the mental disability of the victim, there

should be no further enquiry as envisaged under Section

357A of the CrPC. The said provision reads as follows:

“357A Victim compensation scheme. ­ (1) Every State Government in co­ordination with the Central Government  shall  prepare  a  scheme  for  providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

(2)  Whenever a recommendation is  made by the Court  for compensation,  the District  Legal Service Authority  or the  State  Legal  Service  Authority,  as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub­section (1).  

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it  may  make recommendation for compensation.  

(4)  Where  the  offender is  not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.  

(5) On receipt of such recommendations or on the application under sub­section (4), the State or the District Legal Services Authority shall, after due

101

enquiry award adequate compensation by completing the enquiry within two months.  

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim,  may order for immediate first­aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”

On a perusal of the aforesaid provision, it is quite vivid

that when Court makes a recommendation for

compensation, the  District Legal  Services  Authority or

the State Legal Services Authority is required to decide

the quantum of compensation to be awarded under the

Scheme prepared by the State Government in

coordination with the Central Government. The

State/District Legal Services Authority has to conduct an

inquiry and award the adequate compensation by

completing the inquiry.  Had the accused been alive, the

trial  would have  taken place  in  a Court  of  Session as

provided under the CrPC.  As the accused has died and

the victim is certified to be a mentally disabled person

and is fighting the  lis  for some time to come within the

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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

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Reportable

REPORTABLE

                            IN THE SUPREME COURT OF INDIA                        CRIMINAL APPELLATE JURISDICTION

    SPECIAL LEAVE PETITION (CRIMINAL) NOS.2640-2642 OF 2016

Ms. Eera through Dr. Manjula Krippendorf     …Petitioner

Versus

State (Govt. of NCT of Delhi) and Anr.       …Respondents

J U D G M E N T

R.F.NARIMAN, J. (concurring)

1. Having  read  the  erudite  judgment  of  my

learned brother, and agreeing fully with him on the

conclusion  reached,  given  the  importance  of  the

Montesquiean separation of powers doctrine where

the judiciary should not transgress from the field of

judicial law making into the field of  legislative law

making, I have felt it necessary to add a few words

of my own.

2. Mr.  Sanjay  R.  Hegde,  the  learned  Amicus

Curiae, has argued before us that the interpretation

of Section 2(1)(d) of the Protection of Children from

Sexual Offences Act, 2012 cannot include “mental”

age as such an interpretation would be beyond the

‘Lakshman  Rekha’  –  that  is,  it  is  no  part  of  this

Court’s function to add to or  amend the law as it

stands.   This  Court’s  function  is  limited  to

interpreting the law as it stands, and this being the

case, he has exhorted us not to go against the plain

literal meaning of the statute.  

3. Since  Mr.  Hegde’s  argument  raises  the

constitutional spectre of separation of powers, let it

first  be  admitted  that  under  our  constitutional

scheme, Judges only  declare the law; it  is for the

legislatures to make the law.  This much at least is

clear on a conjoint reading of Articles 141 and 245

of  the  Constitution  of  India,  which  are  set  out

hereinbelow:-

“141.  Law declared by Supreme Court to be binding on all courts.  

The law declared by the Supreme Court shall be binding on all courts within the territory of India.  

245. Extent of laws made by Parliament and by the Legislatures of States.  

105

(1)  Subject  to  the  provisions  of  this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.  

(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.”  

4. That  the  Legislature  cannot  ‘declare’  law  is

embedded in Anglo Saxon jurisprudence.  Bills  of

attainder, which used to be passed by Parliament in

England,  have  never  been  passed  from  the  18th

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:

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“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

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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

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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

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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:   

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“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.

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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

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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

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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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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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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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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

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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

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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.”

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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.

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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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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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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

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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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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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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.

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“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

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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

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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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“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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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)

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“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

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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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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

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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

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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

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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

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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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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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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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‘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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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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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.”

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                                                 (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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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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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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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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a minor, shall have a right to appoint a nominated representative.  

(2)  The  nomination  under  sub-section (1)  shall  be  made  in  writing  on  plain paper  with  the  person’s  signature  or thumb impression of the person referred to in that sub-section.

(3)  The  person  appointed  as  the nominated representative shall not be a minor,  be  competent  to  discharge  the duties or perform the functions assigned to  him  under  this  Act,  and  give  his consent in writing to the mental  health professional to discharge his duties and perform the  functions  assigned  to  him under this Act.

(4) Where no nominated representative is  appointed  by  a  person  under  sub- section (1), the following persons for the purposes  of  this  Act  in  the  order  of precedence shall be deemed to be the nominated  representative  of  a  person with mental illness, namely:––

(a)  the  individual  appointed  as  the nominated  representative  in  the advance  directive  under  clause  (c)  of sub-section (1) of section 5; or   (b) a relative, or if  not available or not willing  to  be  the  nominated representative of such person; or  

(c) a care-giver, or if not available or not willing  to  be  the  nominated representative of such person; or

(d) a suitable person appointed as such by the concerned Board; or  

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(e) if no such person is available to be appointed  as  a  nominated representative,  the Board shall  appoint the  Director,  Department  of  Social Welfare,  or  his  designated representative,  as  the  nominated representative of the person with mental illness:  

Provided  that  a  person representing an organisation registered under  the  Societies  Registration  Act, 1860 or any other law for the time being in force, working for persons with mental illness, may temporarily be engaged by the  mental  health  professional  to discharge  the  duties  of  a  nominated representative pending appointment of a nominated  representative  by  the concerned Board.  

(5)  The  representative  of  the organisation, referred to in the proviso to sub-section  (4),  may  make  a  written application  to  the  medical  officer  in- charge  of  the  mental  health establishment  or  the  psychiatrist  in- charge  of  the  person’s  treatment,  and such medical  officer  or  psychiatrist,  as the case may be,  shall  accept  him as the  temporary  nominated representative,  pending appointment  of a  nominated  representative  by  the concerned Board.

(6)  A person  who  has  appointed any  person  as  his  nominated representative  under  this  section  may revoke or alter such appointment at any time in accordance with the procedure laid down for making an appointment of nominated  representative  under  sub- section (1).  

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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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(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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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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(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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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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“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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A reading of the Objects and Reasons of the

aforesaid Act together with the provisions contained

therein  would  show that  whatever  is  the  physical

age of the person affected, such person would be a

“person with disability” who would be governed by

the provisions of the said Act.  Conspicuous by its

absence is the reference to any age when it comes

to protecting persons with disabilities under the said

Act.

42. Thus, it  is clear that viewed with the lens of

the legislator, we would be doing violence both to

the intent and the language of Parliament if we were

to read the word “mental” into Section 2(1)(d) of the

2012 Act.  Given the fact that it is a beneficial/penal

legislation, we as Judges can extend it only as far

as  Parliament  intended  and  no  further.   I  am  in

agreement,  therefore,  with  the  judgment  of  my

learned  brother,  including  the  directions  given  by

him.    

………………………J. (R.F. Nariman)

New Delhi; July 21, 2017.

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