Ms. Eera through Dr. Manjula Krippendorf Vs. State (Govt. of NCT of Delhi) & ANR.
[Criminal Appeal Nos.12171219 of 2017 arising out of S.L.P. (CRL.) Nos. 26402642 of 2016]
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 accusedrespondent No. 2 by the Court as the said respondent chose not to enter appearance, few facts are essential to be noted. The appellant is represented by her mother on the foundation that she is suffering from Cerebral Palasy (R. Hemiparesis) and, therefore, though she is biologically 38 years of age, yet her mental age is approximately 6 to 8 years. In this backdrop, it is contended that the trial has to be held by the Special Court established under the POCSO Act.
As the facts 2 would unroll, the mother of the appellant had lodged FIR No. 197 of 2014 at Police Station Defence Colony, New Delhi against the respondent No. 2 alleging that he had committed rape on her mentally retarded daughter and on the basis of the FIR, investigation was carried on and eventually charge sheet was laid for the offence punishable under Section 376(2)(l) of the Indian Penal Code (IPC) before the concerned Judicial Magistrate, who, in turn, committed the case to the Court of the learned Assistant Special Judge/Special Fast Track Court, Saket, New Delhi for trial.
Many a fact has been enumerated which need not be stated in detail. Suffice it to mention that the trial commenced and when the question of examination of the appellant came up, various aspects such as camera trial, videography of the trial, absence of congenial atmosphere and many other issues emerged. As the mother of the appellant felt that the trial court was not able to address the same, the victim through her mother, filed a petition under Section 482 of the Code of Criminal Procedure (CrPC) before the High Court of Delhi praying, inter alia, that the matter 3 should be transferred to the Special Court under the POCSO Act as the functional age of the prosecutrix is hardly around 6 to 8 years and there is necessity for trial to be conducted in a most congenial, friendly and comfortable atmosphere and the proceeding should be videographed.
The High Court vide order dated 15.06.2015 issued directions for making necessary arrangements for videography of the proceeding as the prosecutrix mainly communicates through gestures. The order passed in that regard read as follows: "Vide order dated 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 4 two doctors of AIIMS have been contacted who will be present on the date when the evidence of the prosecutrix has to be recorded. Learned counsel for the petitioner states that the prosecutrix is terrified by the presence of males and it would be thus appropriate if female doctors/interpreters are available at the time of the evidence of the prosecutrix. Learned APP will file a status report in this regard before the next date. In the meanwhile the learned Sessions Judge (South District) will make necessary arrangements for videography of the proceedings as the prosecutrix mostly communicates through gestures."
4. The matter was finally disposed of vide order dated 29.06.2015 and the appellant felt aggrieved as the two main prayers, namely, (i) transfer of the case to the Special Court established under the POCSO Act as the functional age of the prosecutrix is 6 to 8 years and (ii) the transfer of the case from P.S. Defence Colony to the Crime Branch for proper supervisional investigation were not allowed. As the impugned order would show, the High Court directed that the case should be assigned to a trial court presided over by a lady Judge in Saket Court.
5. When the matter was listed on 01.04.2016, it was contended by Ms. Bhati, learned counsel for the appellant that the prosecutrix has been suffering from a devastating mental and physical disorder since her birth and though she is biologically aged about 38 years, she has not mentally grown beyond six years. In support of her stand, a certificate of the neurophysician and the psychologist of AIIMS, New Delhi was filed.
She had referred to Section 28 of the POCSO Act which deals with Special Courts. She had also drawn attention of the Court to Sections 24 to 27 of the POCSO Act to highlight that there is a special procedure for recording statement of the child and, therefore, when medical evidence had established the mental age, the victim's biological age should not be the governing yardstick but she should be considered as a child because she is intellectually challenged and mentally retarded under the POCSO Act.
6. As the respondent No. 2 did not appear, the Court appointed Mr. Sanjay R. Hegde, learned senior counsel, as Amicus Curiae to argue and put forth the points on behalf of respondent No. 2. On behalf of respondent 6 No.1, that is, State (Government of NCT of Delhi), Mr. P.K. Dey and Mr. Siddharth Dave, learned counsel assisted the Court.
7. After the matter was heard, the judgment was reserved and after some time, an office note was circulated that the sole accused, the respondent No. 2, had died during the pendency of the proceeding. When the matter was listed again because of the subsequent event, it was contended by Ms. Bhati appearing for the appellant that under the POCSO Act and the Rules framed thereunder, the victim would be entitled to get compensation and the procedure would be different. That apart, she also submitted that after the death of the accused, the grievance still remains and as the procedure for grant of compensation is different, this Court may deal with the principal issue. And, I have thought it appropriate to address the same.
8. Learned counsel for the appellant submits that Section 2(d) that defines "child" to mean any person below the age of eighteen years should not be conferred a restricted meaning to convey that the words "eighteen 7 years" are singularly and exclusively associated with the biological or chronological age and has nothing to do with the real concept or conception of "age". Elaborating the argument, she would contend that "child", as defined under Article 1 of the United Nations Convention on the Rights of Children, is to mean "every human being below the age of 18 years unless under the law applicable, majority is attained earlier".
9. It is urged by her that the principle of purposive construction is required to be adopted keeping in view the intrinsic perspective of POCSO Act and construction should be placed on the word "age" to compositely include biological and mental age so that the protective umbrella meant and recognized for the child under the law to avoid abuse and exploitation is achieved. It is contended by her that likes of the appellant who suffer from mental disabilities or are mentally challenged are unable to keep pace with biological age and their mental growth and understanding is arrested and unless they get the protection of law that the legislature has conceived, it would be an anathema that the law that has 8 been brought in to protect the class, that is, child, leaves out a part of it though they are worse than the children of the age that is defined under the POCSO Act.
Elaborating further, she would submit that a mentally retarded person may have the body mass, weight and height which will be matching the chronological age or biological age of 30 years, but in reality behaves like a child of 8 to 10 years, for the mental age, as it is called, stops progressing. She has drawn a comparison between various provisions of the IPC where the legislature has recognized a person of unsound mind to be on the same pedestal as child which indicates that IPC prescribes protection on the basis of maturity of understanding, to the persons suffering from unsoundness of mind. Emphasis is on departure from the chronological age by the legislature by laying stress on capacity to understand the nature and consequence of the act. She has also referred to Chapter XXV of the CrPC that enumerates the provisions as to the accused persons of unsound mind.
10. Learned counsel would contend that dignity of a child is of extreme significance and this Court has 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 10 Act is to give protection to the child and check sexual abuse of a child. A literal construction, according to the learned counsel, would defeat the intendment of the legislature. For the aforesaid purpose, she has commended us to the authorities in Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi and 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 Corporation.
12. Mr. Dey, learned counsel appearing for the first respondent - State, submits that POCSO Act has been introduced with a view to provide protection of the children from the offences of sexual assault, sexual harassment and abuse with due regard to safeguard the 5 (1986) 2 SCC 614 6 (1999) 2 SCC 228 7 (2008) 9 SCC 527 8 (2012) 2 SCC 489 9 (2014) 9 SCC 657 11 interest and well being of the children at every stage of judicial proceeding including children friendly procedure, recording of evidence and establishment of Special Courts for the speedy trial and, therefore, a person who is mentally challenged/retarded is required to be brought within the definition of a child so that the life is ignited to the piece of legislation.
Learned counsel would submit that when such a person is incapable of understanding what is happening to her, she is equal to a child and when such an interpretation is placed, it serves the basic purpose of behind the Act that the legislature has intended to achieve. It is his further submission that there is a distinction between two terms, namely, "age" and "years", for "age" signifies mental or biological/physical age whereas "years" refer to chronology and hence, it is possible to interpret the word "age" in a particular provision to mean mental age without offending the term of the word "year" which means year and "year" has been defined in the General Clauses Act, 1897 as period of 365 days.
He has referred to the Juvenile Justice (Care and Protection of Children) 12 Act, 2015 to highlight that the legislative intention there is explicit with regard to mental capacity of a person which would have a relevant factor to determine the forum of trial. It is further contended by him that if the trial is held in case of mental retarded person whose biological age is more than 18 years by the Special Court as provided under the POCSO Act, the accused is no way affected because the punishment for the offence remains the same even if the trial is held by the Court of Session under the CrPC. Learned counsel in his written note of submissions has placed reliance upon Sheikh Gulfan & others v. Sanat Kumar Ganguli10, Yudhishter v. Ashok Kumar11, Pratap Singh v. State of Jharkhand and another, Directorate of Enforcement v. Deepak Mahajan and another.
13. Mr. Dave, while supporting the stand of Mr. Dey has commended us to the decision in Deepak Mahajan (supra). 10 AIR 1965 SC 1839 11 (1987) 1 SCC 204 12 (2005) 3 SCC 551 13 (1994) 3 SCC 440 13 14. Mr. Hegde, learned senior counsel, who has been engaged by the Court to assist on behalf of respondent No. 2, has referred to Article 1 of the United Nations Convention on the Rights of the Child which has been acceded to by India on 11.12.1992. Relying on the definition in the Black's Law Dictionary and the Advanced Law Lexicon by P. Ramanatha Aiyar, 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 14 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 15 Section 2(d) is plain and intelligible, the Court ought not add or read words into the same regard being had to the pronouncements in P.K. Unni v. Nirmala Industries and 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 16 vary with time and surrounding circumstances and, therefore, interpreting the word "age" falling under the definition of "child" to include mental age also would breach the settled principles of criminal jurisprudence and usher in uncertainty.
16. Having noted the rivalised submissions, I shall presently focus on the preamble, the Statement of Objects and Reasons and the essential features of the POCSO Act. The said piece of legislation came into effect on 19.6.2012 and has a long Preamble. The relevant parts of the Statement of Objects and Reasons of the POCSO Act are as follows:
"1. .....
2. .....
3. The date collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the 'Study on Child Abuse: India 2007' conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children are not adequately addressed by the existing laws. A large number of such offences are neither specifically provided for nor are they adequately penalized. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences 17 against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.
4. It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process incorporating childfriendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences.
5. .....
6. .....
7. ....."
17. The Preamble of the POCSO Act reads thus: "An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
WHEREAS clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;
AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of 18 standards to be followed by all State parties in securing the best interests of the child;
AND WHEREAS it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;
AND WHEREAS it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child; AND WHEREAS the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent -
a. the inducement or coercion of a child to engage in any unlawful sexual activity;
b. the exploitative use of children in prostitution or other unlawful sexual practices;
c. the exploitative use of children in pornographic performances and materials;
AND WHEREAS sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed".
18. The purpose of referring to the Statement of Objects and Reasons and the Preamble of the POCSO Act is to 19 appreciate that the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child.
Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The statement of objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity.
There is also a 20 mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing childfriendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act.
19. Having analysed the Statement of Objects and Reasons and the Preamble of the POCSO Act, it is necessary to appreciate what precisely the POCSO Act projects.
20. Chapter II of the POCSO Act deals with sexual offences against children. Part A of the said Chapter provides for penetrative sexual assault and punishment therefor. Section 3 stipulates what is the penetrative sexual assault and Section 4 provides punishment for such offence. Part B of the said Chapter deals with aggravated penetrative sexual assault and punishment therefor. Section 5 copiously deals with what can constitute aggravated penetration sexual assault. It is extremely significant to note that Section 5(a) 21 enumerates number of circumstances where the offence becomes aggravated one. It includes in its ambit various situations and also certain categories of persons. The provision is quite elaborate. Section 5(k) to which my attention has been drawn reads thus: "(k) whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child;" The aforesaid provision, as is evident, lays stress on the mental disability of the child.
21. Part C of Chapter II deals with sexual assault and punishment therefor. Section 7 lays down about the sexual assault. Part D deals with aggravated sexual assault and punishment therefor. Section 9 deals with aggravated sexual assault which is akin to Section 5. Part E deals with sexual harassment and punishment therefor. The said harassment lays down various acts which will amount to sexual harassment.
22. On a reading of the aforesaid Chapters, it is quite manifest and limpid that the legislature has intended to protect the child from any kind of sexual assault and harassment. It has also laid stress upon the mental and 22 physical disability of the child. The child, as per the definition, is the principal protagonist and the POCSO Act protects the child from any sexual act and also takes into consideration his mental disability. Thus, the legislature was alive to the condition of mental disability. Chapter III of the POCSO Act deals with using child for pornographic purposes and punishment therefor.
Chapter IV deals with abetment of and attempt to commit an offence. Chapter V deals with the procedure for reporting of cases and Chapter VI provides for procedure for recording statement of the child. Sections 24 to 27, which have been pressed into service by Ms. Bhati, relate to recording of statement of a child; recording of statement of a child by Magistrate; additional provisions regarding statement to be recorded and medical examination of a child.
23. Section 27 stipulates that medical examination of a child in respect of whom any offence has been committed under the Act is to be conducted in accordance with Section 164A of the CrPC. It is also significant to note that the said examination has to be done 23 notwithstanding an FIR or complaint has not been registered for the offences under the POCSO Act. I shall refer to Section 164A CrPC at a later stage. Section 28 of the POCSO Act deals with Special Courts. Section 31 provides that the CrPC shall apply to the proceedings before a Special Court. Section 32 requires the State Government to appoint a Special Public Prosecutor for every Special Court for conducting the cases under the provisions of the POCSO Act.
Chapter VIII deals with the procedure and powers of the Special Courts and recording of evidence. Section 35 provides for a period for recording of evidence of child and disposal of case. Section 36 stipulates that child should not see the accused at the time of testifying. The said provision protects the child and casts an obligation on the Special Court to see that the child, in no way, is exposed to the accused at the time of recording of evidence. Recording of the statement of a child is through video conferencing or by utilizing single visibility mirrors or curtains or any other device is permissible. This provision has its own sanctity. Section 37 deals with trials to be conducted in 24 camera and Section 38 provides assistance of an interpreter or expert while recording evidence of a child. Section 42A lays the postulate that POCSO Act is not in derogation of the provisions of any other law.
24. Section 45 empowers the Central Government to make rules for carrying out the purposes of the POCSO Act. In exercise of powers conferred under Section 45, a set of rules, namely, the Protection of Children from Sexual Offences Rules, 2012 ('2012 Rules') has been framed and the said Rules have come into force on 14.11.2012. Rule 7 which deals with compensation reads as under:
"7. Compensation
(1) The Special Court may, in appropriate cases, on its own or on an application filed by or on behalf of the child, pass an order for interim compensation to meet the immediate needs of the child for relief or rehabilitation at any stage after registration of the First Information Report. Such interim compensation paid to the child shall be adjusted against the final compensation, if any.
(2) The Special Court may, on its own or on an application filed by or on behalf of the victim, recommend the award of compensation where the accused is convicted, or where the case ends in acquittal or discharge, or the accused is not traced or identified, and in the 25 opinion of the Special Court the child has suffered loss or injury as a result of that offence.
(3) Where the Special Court, under subsection (8) of section 33 of the Act read with subsections (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;
(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. Adamson 21. In any event, nowadays the shift towards purposive interpretation is not in doubt.
The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently. ..." 20 [2003] UKHL 13 : [2003] 2 AC 687 : [2003] 2 WLR 692 (HL) 21 (1877) LR 2 AC 743 at p. 763 (HL)
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.
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.
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. Andrews.
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 Rajasthan and in that context, the issue before the larger Bench was whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the court/competent authority under the Juvenile Justice Act, 1986.
The Court adverted to Section 2 of the said Act that dealt with presumption and determination of age, and Section 32 28 (2000) 5 SCC 488 29 (1982) 2 SCC 202 44 that provided presumption and determination of age. Referring to the said Section, it was contended that the word "is" used in two places of the Section and that the word "is" suggests that for determination of age of juvenile the date of production would be the reckoning date as the inquiry with regard to his age begins from the date he is brought before the court and not otherwise. The Court held that the word "is" employed in Section 32 is referable to a juvenile who is said to have committed an offence on the date of the occurrence.
To arrive at the said conclusion, the Court ruled that the legislative intendment underlying Sections 3 and 26 read with the preamble, aims and objects of the Act is clearly discernible and a conjoint reading of the sections, preamble, aims and objects of the Act leaves no manner of doubt that the legislature intended to provide protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication thereof. It further proceeded to say that the whole object of the Act is to provide for the care, protection, treatment, development and rehabilitation of 45 juveniles and the Act being a benevolent legislation, an interpretation must be given which would advance the cause of the legislation, that is, to give benefit to the juveniles.
42. This decision has to be carefully understood. It dissected the provision from which it was discernible that the age of the juvenile is the date of occurrence and the said construction is in consonance with the legislative objective. There is neither abnormally stretched interpretation nor the subject of the Act is read out of context. Thus, the context and the exposition of intention of words in the schematic backdrop struck a harmonious bond.
43. In Shankar Kisanrao Khade v. State of Maharashtra, 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 object which comprehends the mischief and its remedy to which the enactment is directed. In the said case, dwelling upon the concept of context, the larger Bench opined that the context means; the statute as a whole, the previous state of law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy. It was further ruled that long title which precedes is a part of an Act itself and is admissible as an aid to its construction.
That apart, the preamble of an Act, no doubt, can also be read along with other provisions of the Act to find out the meaning of the words in enacting provisions to decide whether they are clear or ambiguous but the preamble in itself not being an enacting provision is not of the same weight as an aid to construction of a Section of the Act as are other relevant enacting words to be found elsewhere in the Act. The utility of the preamble diminishes on a conclusion as to clarity of enacting provisions. It is therefore said that the preamble is not to influence the meaning otherwise ascribable to the enacting parts unless there is a compelling reason for it.
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