Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 4 OF 2016
Supreme Court Women Lawyers … Petitioner
Association (SCWLA)
VERSUS
Union of India & Anr. … Respondents
O R D E R
Dipak Misra, J.
The petitioner, Supreme Court Women Lawyers
Association (SCWLA), being immensely sensitively ignited by
the atrocious, inconceivable and brutal sexual offence where
certain psychologically and possibly psychographically
perverted culprits have not even spared 28 days old baby
girl and also in certain situations have monstrously behaved
with other small girls who come within two to ten years of
age as if they are totally trivial commodities, has invoked the
Signature Not Verified
jurisdiction of this Court under Article 32 of the
Digitally signed by
Gulshan Kumar Arora
Date: 2016.01.12
17:46:17 IST
Reason:
Constitution of India for considering imposition of “chemical
2
castration” as an additional punishment for such child
abusers.
2. In support of the cause projected, it is submitted by
Ms. Mahalakshmi Pavani, learned senior counsel along with
Ms. Shiva Vijay Kumar, Ms. Anita Bafna and Ms. Prerna
Kumari, learned counsel for the petitioner that reading
certain news items in the newspapers in the morning has
become quite a dreadful and lamentable experience for any
sensitive person in this country and extremely agonizing
and anguishing for any woman as the concept of civility and
conception of civilised society seem to have veered on the
path of destruction, and degradation from the basic human
values. She has drawn our attention to the news items in
the Times of India, New Delhi dated December 07, 2015,
Times City, dated December 8, 2015 and various TV reports
which reflect that two to five year old girl children have been
abused and raped. Sometimes, as she would put with all
vestige of distress at her command, the tender angelic girls
have been abducted, brutally ravished and murdered. It is
urged by her that she is absolutely conscious that this
Court may not be inclined to issue a mandamus to create a
3
punishment in respect of an offence but indubitably this
Court can give a suggestion so that the legislature can
appositely respond to the collective cry.
3. Learned senior counsel has drawn inspiration from the
decisions rendered in Vishaka & Ors. v. State of
1 2
Rajasthan & Ors. and Sakshi v. Union of India & Ors.
to stress the point that this Court can always lay the
guidelines in the said regard. Additionally, learned counsel
for the petitioner highlighting the fundamental value of
human rights and dignity of the children submitted that
when a child is born, thought of the Creative Intelligence or
Almighty comes into action. It is canvassed by her that
when a child sees the mother earth it is a grace to the
human race but unfortunately the life span of a girl child is
guillotined before it blossoms because of unimaginable
carnal desire of some.
4. We have sought assistance of Mr. Mukul Rohatgi,
learned Attorney General for India. Responding to the
1
(1997) 6 SCC 241
2 (2004) 5 SCC 518
4
submissions of he learned senior counsel for the petitioner,
it is very fairly put forth by Mr. Rohatgi that a society which
is civilized and replete with cultural values of thousand
years old and respects child and human rights, child abuse
and the rape of a girl child can never be tolerated, and the
culprits deserve to be dealt with iron hands of law.
However, Mr. Rohatgi would submit that this Court should
not suggest a particular or specific punishment to be
introduced as it is in the domain of wisdom of the
Legislature. That apart, canvassed Mr. Rohatgi, the
punishment suggested by the Petitioner-Association is more
out of passion rather than rational deliberation. In essence,
the submission is that punishment is provided under
Section 376 of the Indian Penal Code (IPC) in respect of a
woman who is minor but there may be circumstances where
more specific attention may be necessitous for dealing with
the rapist of a girl child.
5. At the very outset, we must make it clear that the
courts neither create offences nor do they introduce or
legislate punishments. It is the duty of the Legislature. The
5
principle laid down in Vishaka's case is quite different, for
in the said case, the Court relied on the International
Convention, namely, “Convention on the Elimination of All
Forms of Discrimination against Women”, especially
Articles pertaining to violence and equality in employment
and further referred to the concept of gender equality
including protection from sexual harassment and right to
work with dignity and on that basis came to hold that in the
absence of enacted law to provide for effective enforcement
of the basic human right of gender equality and guarantee
against the sexual harassment and abuse, more particularly
against sexual harassment at work places, guidelines and
norms can be laid down in exercise of the power under
Article 32 of the Constitution, and such guidelines should
be treated as law declared under Article 141 of the
Constitution. The following passage from the said authority
makes the position clear:-
“… The international conventions and norms are
to be read into them in the absence of enacted
domestic law occupying the field when there is
no inconsistency between them. It is now an ac-
cepted rule of judicial construction that regard
must be had to international conventions and
6
norms for construing domestic law when there is
no inconsistency between them and there is a
void in the domestic law. …”
6. We have referred to the said passage as it is clear that
the Court has clearly taken note of the constitutional silence
or constitutional abeyance and dealt with the constitutional
obligation to protect the right of women at the workplace.
The Constitution Bench in Manoj Narula v. Union of
3
India , while dealing with the said principle, has observed:-
“… The said principle is a progressive one and is
applied as a recognised advanced constitutional
practice. It has been recognised by the Court to
fill up the gaps in respect of certain areas in the
interest of justice and larger public interest. Lib-
eralisation of the concept of locus standi for the
purpose of development of public interest litiga-
tion to establish the rights of the have-nots or to
prevent damages and protect environment is one
such feature. Similarly, laying down guidelines as
procedural safeguards in the matter of adoption
of Indian children by foreigners in Laxmi Kant
Pandey v. Union of India, (1987) 1 SCC 66, or is-
suance of guidelines pertaining to arrest in D.K.
Basu v. State of W.B ., (1997) 1 SCC 416, or direc-
tions issued in Vishaka v. State of Rajasthan
(supra) are some of the instances.”
7. In the case at hand, the Legislature has enacted the
law and provided the punishment and, therefore, we cannot
3 (2014) 9 SCC 1
7
take recourse to the Vishaka principle. There is no
constitutional silence or abeyance.
8. In Sakshi (supra), the Court was dealing with a Public
Interest Litigation filed by the Petitioner-Association to
provide legal, medical, residential, psychological or any
other help, assistance or charitable support for women, in
particularly those who are victims of any kind of sexual
abuse and/or harassment, violence or any kind of atrocity
or violation. The Court took note of various statutory
provisions and the constitutional command, referred to the
international conventions, pronouncement in S. Gopal
4
Reddy v. State of A.P. and the report of the Law
Commission, and opined as follows:-
“The writ petition is accordingly disposed of with
the following directions:
(1) The provisions of sub-section (2) of Section 327
CrPC shall, in addition to the offences mentioned
in the sub-section, also apply in inquiry or trial of
offences under Sections 354 and 377 IPC.
(2) In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements may be
made where the victim or witnesses (who may be
4 (!996) 4 SCC 596
8
equally vulnerable like the victim) do not see the
body or face of the accused;
(ii) the questions put in cross-examination on be-
half of the accused, insofar as they relate directly
to the incident, should be given in writing to the
presiding officer of the court who may put them to
the victim or witnesses in a language which is
clear and is not embarrassing;
(iii) the victim of child abuse or rape, while giving
testimony in court, should be allowed sufficient
breaks as and when required.
These directions are in addition to those given in
State of Punjab v. Gurmit Singh , (1996) 2 SCC
384.”
9. We shall refer the said authority at a later stage, but
suffice to say here that the Court neither proceeded to legis-
late nor did it provide for a punishment.
10. In the case at hand, we are concerned with the rape
committed on a girl child. As has been urged before us that
such crimes are rampant for unfathomable reasons and it is
the obligation of the law and law makers to cultivate respect
for the children and especially the girl children who are
treated with such barbarity and savageness as indicated
earlier. The learned senior counsel appearing for the peti-
9
tioner has emphasized on the obtaining horrendous and re-
pulsive situation.
11. In this context, we may usefully refer to Section 376
IPC, as amended with effect from February 3, 2013 which
reads as follows:-
“376.Punishment for sexual assault --(1)(a)
whoever, except in the cases provided for by
sub-section (2) commits sexual assault shall be
punished with imprisonment of either description
for a term which shall not be less than seven
years but which may extend to 10 years and
shall also be liable to fine. (b) If the sexual
assault is committed by a person in a position of
trust or authority towards the complainant or by
a near relative of the complainant, he/she shall
be punished with rigorous imprisonment for a
term which shall not be less than ten years but
which may extend to life imprisonment and shall
also be liable to fine.
(2) Whoever,-
(a) Being a police officer commits rape-
(i) Within the limits of the police station to
which he is appointed; or
(ii) In the premises of any station house; or
(iii) On a woman or minor in his custody or in the
custody of a police officer subordinate to such
officer; or
(b) Being a public servant, commits rape on a
woman in such public servant's custody or in the
custody of a public servant subordinate to such
10
public servant; or
(c) being a member of the armed forces
deployed in area by the Central or a State
Government commits rape in such area; or
(d) being on the management or on the staff of a
jail, remand home or other place of custody
established by or under any law for the time
being in force or of a women's or children's
institution, commits rape on any inmate of such
jail, remand home, place of institution; or
(e) being on the management or on the staff of a
hospital, commits rape on a woman in that
hospital; or
(f) being a relative, guardian or teacher of, or a
person in a position of trust or authority towards
the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian
violence; or
(h) commits rape on a woman knowing her to be
pregnant; or
(i) commits rape on a woman when she is under
sixteen years of age; or
(j) commits rape, on a woman incapable of
giving consent; or
(k) being in a position of control or dominance
over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering from
mental or physical disability; or
(m) while committing rape causes grievous
bodily harm or maims or disfigures or endangers
the life of a woman; or
11
(n) commits rape repeatedly on the same
woman,
shall be punished with rigorous imprisonment for
a term which shall not be less than ten years, but
which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of
that person's natural life, and shall also be liable
to fine.
Explanation.--For the purposes of this
sub-section.--
(a) 'armed forces' means the naval, military and
airforces and includes any member of the Armed
Forces constituted under any law for the time
being in force, including the paramilitary forces
and any auxiliary forces that are under the
control of the Central Government or the State
Government;
(b) 'hospital' means the precincts of the hospital
and includes the precincts of any institution for
the reception and treatment of persons during
convalescence or of persons requiring medical
attention or rehabilitation;
(c) 'police officer' shall have the same meaning
as assigned to the expression 'police; under the
Police Act, 1861(5 of 1861);
(d) 'women's or children's institution' means an
institution, whether called an orphanage or a
home for neglected women or children or a
widow's home or an institution called by any
other name, which is established and maintained
for the inception and care of women or children.”
12. It is submitted by Ms. Pavani, learned senior counsel
that Section 376(2)(i) deals with a culprit who commits rape
12
on a woman who is under 16 years of age but the instances
are numerous where the girl children and babies are raped.
Highlighting further, it is proponed by her that when the
society faces perversion where the child abuse like rape is
rampant, there is a warrant for specific provision for
imposing higher and severe punishment on such culprits as
there is a provision under Section 376B which deals with
sexual intercourse by husband upon his wife during
separation or Section 376C, sexual intercourse by a person
in authority or Section 376E, punishment for repeated
offender.
13. It is urged by Ms. Pavani, learned senior counsel that
the term “child” requires to be defined, regard being had to
the situation obtaining in the present day society. Learned
counsel would suggest that a woman below 16 years is
definitely a minor but a child, though a minor, may stand in
a different category. The pain and suffering of a child is a
brutal assault on her physical frame, when she is raped.
She has no idea about sex or rape. It is a nightmare.
Therefore, concern expressed by the Petitioner-Association
13
is justified. It is not a Utopian thought or “floating fancy” of
unwarranted assumption. It is the demonstration of reality
in concrete terms. When a society moves in this way, there
has to be instillation of fear of law and the punishment has
to be definitive in a different way. In such a situation the
classical understanding of crime by Marcus Aurelius, the
nd
Roman Emperor of 2 Century A.D., who had said that
poverty is the mother of crime may not hold good, for the
crimes committed on girl children has no nexus with the
economic status of the perpetrator of crime; on the contrary,
may have nexus with neurotic behavior. In fact, this is a
crime which is a shameless demonstration and total
insensitive exposition of attitude to a victim. It is a gross
violation of the social values and a failure of an individual.
It is an act of extreme depravity. Therefore, the situation
that has emerged compels one to rethink.
14. We must appreciate the stand taken by Mr. Rohatgi,
learned Attorney General for India, who has keenly
expressed his concern relating to the child abuse. It can
never be forgotten that it is duty of the society to make a
child happy. In this regard, it is apt to quote a few lines
14
from Buxton :-
“The first duty to children is to make them
happy. –If you have not made them so, you have
wronged them, –No other good they may get can
make up for that.”
15. This Court cannot provide a higher punishment. It can
only suggest to the Legislature. We are absolutely
conscious that IPC provides punishment for the offence of
rape . There can be no doubt that a girl child is a minor but
may be a time has come where a distinction can be drawn
between the girl children and the minor, may be by fixing
the upper limit at 10 for the girl children. We are disposed
to think so as by that age, a child, a glorious gift to
mankind, cannot conceive of any kind of carnal desire in
man. Once she becomes a victim of such a crime, there is
disastrous effect on her mind. The mental agony lasts long.
Sorrow and fear haunt forever. There is need to take steps
for stopping this kind of child abuse and hence, possibly
there is a need for defining the term “child” in the context of
rape and thereafter provide for more severe punishment in
respect of the culprits who are involved in this type of crime.
In the light of the said decision, we part with the suggestion
15
with the fond hope that Parliament would respond to the
agony of the collective, for it really deserves consideration.
We say no more on this score.
16. We have earlier stated that we shall refer to the
authority in Sakshi (supra). In the said case, after issuing
the directions, the Court has observed thus:-
“The suggestions made by the petitioners will ad-
vance the cause of justice and are in the larger
interest of society. The cases of child abuse and
rape are increasing at an alarming speed and ap-
propriate legislation in this regard is, therefore,
urgently required. We hope and trust that Parlia-
ment will give serious attention to the points
highlighted by the petitioner and make appropri-
ate legislation with all the promptness which it
deserves.”
17. The writ petition is accordingly disposed of.
.......................J.
(Dipak Misra)
.......................J.
(N.V. Ramana)
New Delhi,
January 11, 2016.
16
ITEM NO.9 COURT NO.4 SECTION PIL(W)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s). 4/2016
SUPREME COURT WOMEN LAWYERS ASSOCITION (SCWLA) Petitioner(s)
VERSUS
UNION OF INDIA AND ANR Respondent(s)
Date : 11/01/2016 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE DIPAK MISRA
HON'BLE MR. JUSTICE N.V. RAMANA
For Petitioner(s) Ms. Mahalakshmi Pavani, Sr. Adv.
Ms. Shiva Vijaya Kumar, Adv.
Ms. Anita Bafna, AOR
Ms. Prerna Kumari, Adv.
For Respondent(s) Mr. Mukul Rohtagi, AG
UPON hearing the counsel the Court made the following
O R D E R
The writ petition is disposed of in terms of the signed
reportable order.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable order is placed on the file)