Delhi High Court
Sanjjiiv Kkumaar vs Union Of India on 17 December, 2019
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th December, 2019
+ W.P.(C) 8745/2017
SANJJIIV KKUMAAR ..... Petitioner
Through: Petitioner in person
Ms. Sonia Mathur & Mr. Gautam Narayan, Sr.
Advs. (Amicus Curiae) with Ms. Noor Rampal &
Ms. Shivani Vij, Advs.
versus
UNION OF INDIA ..... Respondent
Through: Mrs. Suparna Srivastava & Mr.Tushar
Mathur, Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE REKHA PALLI
JUDGMENT
D.N. PATEL, Chief Justice (Oral)
1. This writ petition has been preferred with the following prayers:
"1. To issue writ in the nature of mandamus or any other
appropriate writ, order or directions, to declare Gender
Specific Sections of IPC 375 & IPC 376 null, void and
unconstitutional as per Article 13(2) of Indian Constitution as
in current form IPC 375 & 376 are ultra-vires Articles 21 and
14 of Constitution of India, as after Right to Privacy Ruling
where consent and bodily integrity of each citizen is now
fundamental rights as a part of the freedoms and are intrinsic
part of right to life and personal liberty under Article 21 and
female and male both have equality before law and equal
protection of law under Article 14 guaranteed by Part III of
the Constitution.
2. To issue writ in the nature of mandamus or any other
appropriate writ, order or directions, using Doctrine of Pari
Materia to replace the IPC 375 and IPC 375 with Gender
Neutral IPC 375 and IPC 376 of The Criminal
law(amendment) Ordinance 2013 dated 3rd February 2013,
No 3 of 2013, published in The Gazette of India
(Extraordinary), as gender neutral IPC 375 and IPC 376 was
enacted on the same subject but at different time, were law of
the land from 3rd February 2013 to 1st April 2013.
3. To issue writ in the nature of mandamus or any other
appropriate writ, order or directions, to declare The Criminal
law(Amendment) Act 2013 dated 2nd April 2013, No 13 of
2013, published in The Gazette of India (Extraordinary), null,
void and unconstitutional as per Article 13(2) of Constitution
of India, as Indian Parliament by applying the Act
Retrospectively [Ex Post Facto] from 3rd February 2013 did
something beyond power vested on it and violated human
rights of citizens and denied the people gender neutral
laws(IPC 375, 376, 376D, 354A, 354C, 354D) of ordinance
along with other specifics of law of the land as per the
ordinance which was effective from 3rd February 2013 to 1st
April 2013, thereby making the Criminal Amendment Act
dated 2nd April 2013 ultra vires Article 20(1), 14 and 21 of
Constitution of India.
4. Allow the applicant to file further pleadings before this
Hon'ble Court.
5. Pass such other and further orders as this Hon'ble
Court may deem just and proper in the facts and
circumstances of the case."
2. We have heard the learned counsel for both the sides and considered
the facts and circumstances of the case including those emerging from the
counter affidavit dated 22nd October, 2018 filed by Union of India, para 5
whereof reads as under:
"5. That it is submitted that even prior to the introduction of
a Criminal Law (Amendment) Act, 2013, Section 375 and 376
of the IPC were gender specific and it was decided by the
Legislature to retain the same. Moreover, it was strong
demand of various women group that the said Sections should
remain gender specific. It is submitted that the Protection of
Children from Sexual Offences Act (POCSO) covers all sexual
offences against a "child". As per Section 2(d) of POCSO, a
"child" is defined as any person below the age of 18 years,
meaning thereby that the Act protects both male and the
female child against sexual offences. Further, Section 377 of
the IPC provides as under:
"377. Unnatural offences.--Whoever voluntarily has
carnal intercourse against the order of nature with any
man, woman or animal, shall be punished with
imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine.
Explanation.--Penetration is sufficient to constitute the
carnal intercourse necessary to the offence described in
this section.
Further, vide Judgment dated 6.9.2018 in the case of Navtej
Singh Johar & Ors. Union of India [WP(Crl) No. 76 of 2016],
the Hon'ble Supreme Court, with utmost clarity has held that
any act of the description covered under Section 377 between
two individuals without consent of any one of them would
invite penal liability under Section 377 of the IPC. Therefore,
the ambit of Section 377 as it exists today would cover all non-
consensual unnatural sexual acts by any person. It is thus
submitted that keeping in view the ambit of the POCSO Act
which covers all forms of sexual offences against minors and
Section 377 of the IPC, it was felt that the existing definition of
rape under Section 375 should be left untouched as the said
provision alongwith Section 377 and the provisions under the
POCSO Act are adequate to cover all sexual offences."
3. Further paragraphs 5 and 6 of the counter affidavit dated 12th June,
2019 filed by Union of India read as under:
"5. That I state that the Law Commission had submitted its
172nd Report titled "Review of Rape Laws" wherein, the
Commission recommended various changes for widening the
scope of the offence under Section 375 of the IPC to make it
gender neutral. Under the said Report, the Law Commission
recommended substitution of the existing Section 375 of IPC
with the following:
375. Sexual Assault: Sexual assault means-
(a) penetrating the vagina (which term shall
include the labia majora), the anus or urethra of
any person with -
i) any part of the body of another person
or
ii) an object manipulated by another
person except where such penetration is carried
out for properhygienic or medical purposes;
(b) manipulating any part of the body of another
person so as to cause penetration of the vagina
(which term shall include the labia majora), the
anus or the urethra of the offender by any part
of the other person's body;
(c) introducing any part of the penis of a person
into the mouth of another person;
(d) engaging in cunnilingus or fellatio; or
(e) continuing sexual assault as defined in
clauses (a) to (d) above in circumstances falling
under any of the six following descriptions:
First- Against the other person's will.
Secondly- Without the other person's consent.
Thirdly- With the other person's consent when
such consent has been obtained by putting such
other person or any person in whom such other
person is interested, in fear of death or hurt.
Fourthly- Where the other person is a female,
with her consent, when the man knows that he is
not the husband of such other person and that
her consent is given because she believes that
the offender is another man to whom she is or
believes herself to be lawfully married.
Fifthly- With the consent of the other person,
when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication
or the administration by the offender personally
or through another of any stupefying or
unwholesome substance, the other person is
unable to understand the nature and
consequences of that to which such other person
gives consent.
Sixthly- With or without the other person's
consent, when such other person is under sixteen
years of age.
Explanation: Penetration to any extent is
penetration for the purposes of this section.
Exception: Sexual intercourse by a man with his
own wife, the wife not being under sixteen years
of age, is not sexual assault."
The Commission had suggested various other changes in
other sections namely Section 376, 376A-376D in the nature
of enhancement of punishment with a minimum punishment
of not less than 5 years. The Commission had also
recommended addition of an 'Explanation' governing
Sections 376B-376D which defined "Sexual Intercourse" to
mean any of the acts mentioned in clauses (a) to (e) in the
proposed Section 375. The Commission had further
recommended insertion of a new Section as 376E dealing
with unlawful sexual contact, deletion of Section 377 and
enhancement of punishment under Section 509.
6. That I state that on receipt of the above said Report of the
Law Commission of India, the Respondent held wide ranging
consultations with various State Governments, Ministries of
the Central Government, the National Commission for
Women and various non-governmental organizations
engaged in empowerment of women and other stakeholders
on the proposed changes in the IPC as recommended by the
Law Commission of India. Pursuant thereto, a High Power
Committee was constituted under the Chairmanship of the
Home Secretary along with Secretaries of other related
Ministries/Departments to draft a Bill incorporating the
changes suggested by the Law Commission of India.
Accordingly, after wide ranging consultation, a draft
Criminal Law (Amendment) Bill, 2012 was finalized."
4. In view of the aforesaid submissions set out in the counter affidavit, it
appears that respondent - Union of India has already considered the Law
Commission's report and after due deliberations and discussions, a decision
has been taken not to amend Sections 375 and 376 of the IPC at this stage.
5. Moreover, it has been submitted by the counsel for both the sides that
in Writ Petition (Civil) No.1262/2018 before the Hon'ble Supreme Court,
similar issue was involved and the writ petition was disposed of by the
Hon'ble Supreme Court vide its order dated 12th November, 2018 which
reads as under:
"Heard learned counsel for the petitioner and perused the
relevant material.
We are not inclined to interfere at this stage as the
issues raised pertain to legislations to be made by the
Parliament, for which adequate recommendations have
already been made by the Law Commission.
The petitioner may seek such other remedy, as may be
available in law.
The writ petition is accordingly disposed of."
6. In the light of the view taken by the Union of India after receiving the
report of the Law Commission and also after due deliberations, a policy
decision has been taken by the Union of India as stated hereinabove, we see
no reason to entertain this writ, hence, this writ petition is hereby dismissed
at this stage.
CHIEF JUSTICE
REKHA PALLI, J
DECEMBER 17, 2019
ns
