Holding

Section 2(d) of the POCSO Act defines "child" solely by chronological age below 18 years; mental age is not part of the definition.

Summary

The appeal concerned the interpretation of Section 2(d) of the Protection of Children from Sexual Offences (POCSO) Act, 2012, where the appellant, a mentally retarded adult, argued that "age" should include mental age so that she could be treated as a child. The Court examined the POCSO Act's objects and reasons, its definition of "child", and compared it with other statutes such as the Medical Termination of Pregnancy Act, 1971, the Mental Healthcare Act, 2017 and the Rights of Persons with Disabilities Act, 2016, concluding that the legislature intended "age" to refer only to chronological/biological age. Consequently, the term "mental age" cannot be read into the definition and the victim, though mentally disabled, is not a "child" under the POCSO Act. The Court also directed the Delhi State Legal Services Authority to award maximum compensation to the victim under Section 357A of the CrPC. The appeals were dismissed.

Issues considered

The proper construction of "age" in Section 2(d) of the POCSO Act – whether it includes mental age.
Whether the POCSO Act's protective scheme extends to a mentally retarded adult.
The appropriate quantum and authority for victim compensation under Section 357A of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 357A
General Clauses Act, 1897s. 3(66)
Indian Penal Code, 1860s. 228A, s. 305, s. 361, s. 376(2)(1), s. 491, s. 89, s. 90, s. 98
Juvenile Justice (Care and Protection of Children) Act, 2000/2015s. 2(12)
Medical Termination of Pregnancy Act, 1971s. 3(4)(a)
Mental Healthcare Act, 2017s. 14, s. 15, s. 2(s), s. 2(t)
National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999s. 14, s. 17, s. 2(g), s. 2(j)
Protection of Children from Sexual Offences Act, 2012s. 27, s. 2(d), s. 39, s. 5(k), s. 7
Rights of Persons with Disabilities Act, 2016s. 18, s. 2(s), s. 31, s. 4, s. 9

Subjects

POCSO Actmental agestatutory interpretationpurposive constructionchild definitionvictim compensationSection 357A CrPCmental retardationLakshman Rekhaseparation of powers

Judgment

[2017] 7 S.C.R. 924

A MS. EERA THROUGH DR. MANJULA KRIPPENDORF
v.
STATE (GOVT. OF NCT OF DELHI) & ANR.
(Criminal Appeal Nos. 1217-1219 of 2017)
B JULY21, 2017
[DIPAK MISRA AND R. F. NARIMAN, JJ.]
Protection of Children from Sexual Offences Act, 2012:
Object of its legislation - Discussed. (Per Dipak Misra, J.)
c s.2(d) - Age - Term 'age' does not include mental age - The
Parliament 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 menta1 retardation are different
D and they require to be determined by an expert body - The degree
is also different - By saying that "age" covers "mental age", has
the potential to create immense anomalous situations without there
being any guidelines or statutory provisions - Juvenile Justice (Care
and Protection of Children) Rules, 2000 - r.12 - Juvenile Jmtice
(Care and Protection of Children) Act, 2015-s.2(12)- Crime against
E children. (Per Dipak Misra, J.)

s.2(d)-Age - The statutes mentions "child's" mental disability
and not an adult's - A reading of the Act as a whole in the light of
the Statement of Objects and Reasons makes it clear that the intention
of the legislator was to focus on children, as commonly understood
F 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
G of which the Act is woven - In short, the difference is the we/1-
known philosophical difference between "is" and "ought'·' - If the
Judge adds something more than what there is in the statute by way
of a supposed intention of the legislator and go beyond creative
interpretation of legislation to legislating itself, he crosses the
Lakshman Rekha and becomes a legislator, stating what the law
H
924
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 925
(GOVT. OF NCT OF DELHI)

ought to be instead of what the law is - A scrutiny of other statutes A
in pari materia would bring this into sharper focus - The Medical
Termination of Pregnancy Act, 1971, brings into sharpfocus the
distinction between "mentally ill persons" and "minors" - s.3(4)(a)
of the 1971 Act again makes it clear that when "the age of 18
years" occurs in a statute, it has reference only to physical age -
B
The distinction between a female 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 cho.se to protect
only children whose physical age was below 18 years - A perusal
of the provisions of the Mental Healthcare Act, 2017 would again c
show that a distinction is made between a mentally ill person and a
minor - Similarly, the Rights of Persons with Disabilities Act, 2016
maintains the selfsame distinction - A perusal of ss.2, 4, 9, 18 and
31 of 2016 Act would show that children with disabilities are dealt
with separately and differently from persons with disabilities - As a
D
contrast to the 2012 Act, the National Trust for Welfare of Persons
with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, I999 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 - A reading of
the Objects and Reasons of the 1999 Act together with the provisions E
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 -
F
Thus, it is clear that viewed with the lens of the legislator, violence
would be done both to the intent and the language of Parliament if
the word "mental" is read into s.2(l)(d) of the 2012 Act. (Per R.F.
Nariman, J.) [Concurring]
Interpretation of statutes - Purposive construction - There is
G
no quarrel over the proposition that while interpreting social welfare
legislations, the method of purposive construction has to be adopted
keeping in view the text and the context ofthe legislation, the mischief
it intends to obliterate and the fundamental intention of the
legislature - If the purpose is defeated, absurd result is arrived at.
(Per Dipak Misra, J.) H
926 SUPREME COURT REPORTS [2017] 7 S.C.R.

A Code Criminal Procedure, 1973: s.357A ~ Victim
Compensation scheme - It is the District Legal Service Authority or
the State Legal Service Authority who have to decide the quantum
of compensation to be awarded under the scheme prepared by the
State Government in coordination with the Central Government -
B In the instant rape case, since victim is certified to be mentally
disabled person and is fighting the !is for sometime under the POCSO
Act, State Legal Service Authority is directed to award compensation
keeping in view scheme framed by the Delhi Government - In view
of special feature of the case, the victim should be granted the
maximum compensation as envisaged under the scheme. (Per Dipak
C Misra, J.)
Disposing of the appeals, the Court
HELD:
Per Dipak Misra, J.
D 1.1 The pivotal issue that emanates for consideration in
these appeals pertains to interpretation of Section 2(d) of the
Protection of Children from Sexual Offences Act, 2012 (POCSO
Act), and the primary argument for the appellant is that the
definition in Section 2( d) that defines "child" to mean any person
E 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
F "child". [Para 2] [939-B-D]
Gurmej Singh v. Pratap Singh Kairon AIR 1960 SC
122 - followed.
State of Himachal Pradesh & another v. Kai/ash Chand
Mahajan & others (1992) Suppl. 2 SCC 351 : (1992]
G
1 SCR 917 - relied on.
Reena Banerjee & another v. Govt. (NCT of Delhi) and
others (2015) 11 SCC 725; Mofil Khan & another v.
State of Jharkhand (2015) 1 SCC 67 : [2014] to SCR
812; Bharat Singh v. Management of New Delhi
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 927
(GOVT. OF NCT OF DELHI)

Tuberculosis Centre, New Delhi and others (1986) 2 A
SCC 614 : [1986] 2 SCR 169; Githa Hariharan (Ms.)
and another v. Reserve Bank of India and another
(1999) 2 SCC 228: [1999) 1 SCR 669; Union of India
v. Prabhakaran Vijaya Kumar and others (2008) 9 SCC
527 : [2008] 7 SCR 673; Regional Provident Fund
B
Commissioner v. Hooghly Mills Company Limited and
others (2012) 2 SCC 489 : [2012) 1 SCR 363;
Bangalore Turf Club Limited v. Regional Director,
Employees' State Insurance Corporation (2014) 9 SCC
657 : [2014] 8 SCR 1021; Sheikh Gu/fan & others v.
Sanat Kumar Ganguli AIR 1965 SC 1839: [1965) SCR c
364; Yudhishter v. Ashok Kumar (1987) 1 SCC 204 :
[1987) 1 SCR 516; Ogg-Moss v. R [1984) 2 SCR 173;
P.K. Unni v. Nirmala Industries and others (1990) 2
SCC 378 : [1990) 1 SCR 483; Lt. Col. Prithi Pal Singh
Bedi etc. v. Union of India and others (1982) 3 SCC
D
140 : [1983) 1 SCR 393; Commissioner of Income-tax,
Madhya Pradesh v. Shrimati Sodra Devi AIR 1957 SC
832 : [1958) SCR 1; Arn it Das v. State of Bihar (2000)
5 SCC 488 : [2000) 1 Suppl. SCR 69; Umesh Chandra
v. State of Rajasthan (1982) 2 SCC 202 : [1982] 3 SCR
583; Shankar Kisanrao Khade v. State of Maharashtra E
(2013) 5 SCC 546 : [2013) 6 SCR 949; Chandra
Mohan v. State <?f Uttar Pradesh and others AIR 1966
SC 1987 - referred to.
R. v. Sharpe BCCA 1999 416; R v. Cockerton [1901]
1 KB 726; Cabell v. Markhan 148 F 2d 737 (2d Cir F
1945) ; Regina (Quintava!le) v. Secretary of State for
Health [2003) UKHL 13 : [2003] 2 AC 687 : [2003) 2
WLR 692 (HL); Abhiram Singh v. C.D. Commachen
(dead) by legal representatives and others (2017) 2 sec
629 : [2017] 1 SCR 158; Nairn v. University of St.
Andrews 1909 AC 147 - referred to. G

1.2 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
H
928 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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 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
B
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. While interpreting a social welfare or
beneficent legislation, one has to be guided by the 'colour',
c '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
D and in that event, he becomes a real creative constructionist
Judge. 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
E 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 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
F
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, only in a case of clear necessity and further it
should be discerned from the four corner of the statute. If the
G 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. [Para 62) [970-A-H; 971-A]
R.MD. Chamarbaugwalla and another v. Union of
India and another AIR 1957 SC 628 : [1957] SCR
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 929
(GOVT. OF NCT OF DELHI)

930; Directorate of Enforcement v. Deepak Mahajan A
and another (1994) 3 SCC 440 : [1994] 1 SCR 445;
Pratap Singh v. State of Jharkhand and another (2005)
3 SCC 551 : (2005] 1 SCR 1019; Hindustan Lever Ltd.
v. Ashok Vishnu Kate and others (1995) 6 SCC 326 :
[1995] 3 Suppl. SCR 702 - relied on.
B
Workmen of American Express International Banking
Corporation v. Management of American Express
International Banking Corporation (1985) 4 SCC 71;
Ajitsinh Arjzmsinh Gohil v. Bar Council of Gujarat and
another (2017) 5 SCC 465; Atma Ram Mittal v. Ishwar
Singh Punia (1988) 4 SCC 284 : [ 1988] 2 Suppl. SCR c
528; S. Copa/ Reddy v. State of A.P (1996) 4 SCC 596:
(1996] 3 Suppl. SCR 439; High Court of Gujarat and
another v. Gujarat Kishan Mazdoor Panchayat and
others (2003) 4 SCC 712 : [2003] 2 SCR 799;
Raghunandan Saran Ashok Saran v. Pearey Lal D
Workshop (1986) 3 SCC 38 : (1986] 2 SCR 537;
Commissioner of Income Tax, Bangalore v. J.H. Got/a
(1985) 4 SCC 343: (1985] 2 Suppl. SCR 711; Polestar
Electronic (Pvt.) Ltd. v. Additional Commissioner, Sales
Tax and another (1978) 1 SCC 636 : (1978] 3 SCR
98; Kehar Singh & Ors v. State (Delhi Admn.) (1988) 3 E
SCC 609 : (1988] 2 Suppl. SCR 24; Gem Granites v.
Commissioner of Income Tax, T.N. (2005) 1 SCC 289 :
[2004] 6 Suppl. SCR 332; Reserve Bank of India v.
Peerless General Finance and Investment Co. Ltd. &
others (1987) 1 SCC 424 : [1987] 2 SCR 1; Union of F
India v. Elphinstone Spinning and Weaving Co. Ltd. and
others (2001) 4 SCC 139 : [2001] 1 SCR 221;
Corocraft Ltd. v. Pan American Airways Inc. (1968) 3
WLR ,714, p.732; State of Haryana & others v.
Sampuran Singh & others (1975) 2 SCC 810 : (1976]
1 SCR 626; Central Bank of India v. State of Kera/a G
and others (2009) 4 SCC 94 : (2009] 3 SCR 735;
Poppatlal Shah v. State of Madras AIR 1953 SC 274 :
(1953] SCR 677; Chief Justice of Andhra Pradesh &
others v. L. V.A. Dixitulu & others (1979) 2 SCC 34:
H
930 SUPREME COURT REPORTS [2017] 7 S.C.R.

A [1979] 1 SCR 26 - referred to.
R (Wes/minister City Council) v. National Asylum Support
Service (2002) 1 WLR 2956 : (2002) 4 All ER 654
(HL) - referred to.
2. The POCSO Act, comprehensively deals with various
B 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
c 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 legislation. It also lays
stress on mental physical disadvantage of a child. It takes note
of the mental disability. [Para 63] [971-C-D)

D Daniel Johannes Stephanus Van Der Bank v. The State
[2014] ZAGPPHC 1017; Daniel Johannes Stephanus
Van Der Bank v. The State [2016] ZASCA 10; S v
Dayimani 2006 (2) SACR 594 (E); Director of Public
Prosecutions, Transvaal v. Minister of Justice and
Constitutional Development and others (2009) ZACC
E 8 : (2009) 4 SA 222 (CC) : (2009) 2 SACR 130 (CC) :
(2009) 7 BCLR 637 (CC); Her Majesty The Queen v.
D.A.I. [2012] 1 RCS 149 - referred to.
3. The legislature despite having the intent in its Statement
of Objects and Reasons and the long Preamble to the POCSO
F 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
G canvass. It is not so. [Para 73] [979-C]
Suchita Srivastava & another v. Chandigarh
Administration (2009) 9 SCC 1 - relied on.
Tulshidas Kanolkar v. State of Goa (2003) 8 SCC 590
: [2003] 4 Suppl. SCR 978 - held inapplicable.
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 931
(GOVT. OF NCT OF DELHI)

4.1 The POCSO Act has identified minors and protected A
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 B
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. A procedure for
determination of age had been provided under Rule 12 of the
Juvenile Justice (Care and Protection of Children) Rules, 2000. C
The procedure was meant for determination of the biological age.
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. Therefore, the D
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. [Para 82)
(985-C-F)
Padma Szmdara Rao (Dead) and others v. State of T.N:
and others AIR 2002 SC 1334 : [2002) 2 SCR 383 - E
followed.
4.2 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 F
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. A reading of the POCSO Act shows that it is gender
neutral. In such a situation, to include the perception of mental G
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
H
932 SUPREME COURT REPORTS [2017] 7 S.C.R.

A provisions. They are within the sphere of legislature. 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. 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
B
would depend upon the degree of retardation or degree of
understanding. It should never be put in a straight jacket formula.
(Para 83) [985-G-H; 986-A-D)
5. Courts sometimes expand or stretch the meaning of a
phrase by taking recourse to purposive interpretation. A Judge
c can have a constructionist approach but there is a limitation to
his sense of creativity. In the instant case, stretching of the
words "age" and "year" would be encroaching upon the legislative
function. (Para 85] [986-G-H; 987-A]
Francis Bennion s Statutory Interpretation (1984 edn.);
D Maxwell on Interpretation of Statutes, 10th Edn., p. 19;
Maxwell on Interpretation of Statutes, Tenth Edn., at
p. 229; Principles of Statutory Interpretation by G.P.
Singh - referred to.
6. Section 357A Cr.P.C. makes it clear that when Court
E 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
F 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 /is for some time to come within the purview of the
G POCSO Act wherein the trial is held in a different manner and
the provisions relating to the compensation are different, the State
Legal Services Authority, Delhi is directed to award the
compensation keeping in view the Scheme framed by the Delhi
Government. In view of special feature of the case, it is a fit case
H
where the victim should be granted the maximum compensation
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 933
(GOVT. OF NCT OF DELHI)

as envisaged under the Scheme. (Para 88] (989-C-F] A
Census Commissioner & others v. R. Krishnamurthy
(2015) 2 SCC 796 : [2014] 11 SCR 463 - followed.
State of Uttar Pradesh and others v. Subhash Chandra
Jaiswal and others (2017) 5 SCC 163 : [2016) 12 SCR
131 - relied on. B

Per R.F. Nariman, J. (Concurring):
1. It is clear on a reading of English, U.S., Australian and
Indian Supreme Court judgments that the 'Lakshman Rekha '
has in fact been extended to move away from the strictly literal c
rule of interpretation back to the rule of the old English case of
Reydon, where the Court must have recourse to the purpose,
object, text, and context of a particular provision before arriving
at a judicial result. In fact, the wheel has turned full circle. It
started out by the rule as stated in 1584 in Heydon's case, which
was then waylaid by the literal interpretation rule laid down by D
the Priyy Council and the House of Lords in the mid t 800s, and
has come back to restate the rule somewhat in terms of what was
most felicitously put over 400 years ago in Heydon's case. (Para
24] (1004-E-F]
V.C. Rangadurai v. D. Gopalan & Others [1979) t SCR E
1054; C.I.T. v. B.N. Bhattacharjee [1979) 3 SCR 1133;
Commissioner of Income Tax v. Distributor (Baroda) (P)
Ltd. (1972) 4 SCC 353 : [1972) 1 SCR 726; Union of
India v. Elphinstone Spinning and Weaving Co. Ltd. and
Ors. (2001) 4 sec 139 : (2001] 1 SCR 221; D.R. F
Venkatachalam v. Deputy Transport Commissioner
(1977) 2 SCC 273 : [1977) 2 SCR 392; Reserve Bank
of India v. Peerless General Finance & Investment Co.
Ltd. and Others (1987) 1 SCC 424 : [1987) 2 SCR 1 -
referred to.
G
Heydon s case 76 E.R.637 [1584); Crawford v. Spooner
Moore's Indian Appeals, Volume 4 (1846 to 1850)
179; Grey v. Pearson, 1857 (6) HLC 61; Towne v.
Eisner, 245 U.S. 418; Commissioner of Internal Revenue
v. Ickelheimer, 132 Federal Reporter, 2d Series, 660;
H
934 SUPREME COURT REPORTS [2017] 7 S.C.R.

A Kirby v. Leather 1965(2) All E.R. 441; Vandyk v. Oliver
(1976] 1 All ER 466; Boyse v. Rossborough 1857 6
HLC 61; Southern P. Co. v. Jensen 244 US 205; Oliver
Ashworth Ltd. v. Ballard Ltd. [1999] 2 All ER 791; R.
(Quintavalle) v. Secretary of State for Health [2003] 2
All E.R.113; CIC Insurance Limited v. Bankstown
B
Football Club Limited F.C. (1997) 187 CLR 384;
Archibald Cox in 60 Harv. Law Rev. 370, 1946-47 - ·
referred to.
2.1 The POSCO Act is a beneficial/penal legislation. Para
1 of the Statement of Objects and Reasons makes it clear that
c 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. Section 2(1)(d) defines "child" as
any person below the age of eighteen years." One look at this
D definition would show that it is exhaustive, and refers to "any
person" an elastic enough expression, below the age of 18 years.
"Year" is defined under the General Clauses Act 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. [Paras 29-31] (1014-C;
E 1015-E-F, H; 1016-A-B]

2.2 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. A reading of the
Act as a whole in the light of the Statement of Objects and Reasons
F 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
G 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. 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
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 935
(GOVT. OF NCT OF DELHI)

that this must have been the intent of the legislator and infuse A
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 B
that the Judge crosses the Lakshman Rekha and becomes a
legislator, stating what the law ought to be instead of what the
law is. 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". [Paras 32, 36 and 37] [1016- C
D; 1017-C-G]
2.3 Section 3(4)(a) of the 1971 Act again makes it clear that
· when "the age of 18 years" occurs in a statute, it has reference
only to physical age. The distinction between a woman who is a
minor and an adult woman who is mentally ill is again brought D
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 b~low 18 years. A perusal of the provisions of
the Mental Healthcare Act, 2017 would again show that a
distinction is made between a mentally ill person and a minor. E
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). F
Similarly, the Rights of Persons with Disabilities Act, 2016
maintains the selfsame distinction. A perusal of the Sections 2, 4,
. 9, 18 and 31 of 2016 Act would show that children with disabilities
are dealt with separately and differently from persons with
disabilities. Thus, Sections 4, 9 and 31 give certain rights to
children with disabilities as opposed to the other provisions, in G
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. As
a contrast to the 2012 Act, the National Trust for Welfare of
H
936 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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. A
reading of the Objects and Reasons of the 1999 Act together
B 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. Thus, it is clear that viewed with
C the lens of the legislator, violence would be done both to the
intent and the language of Parliament if the word "mental" is
read into Section 2(l)(d) of the 2012 Act. [Paras 38-42) (1018-E;
1021-C-E; 1022-F-H; 1023-A; 1024-E-G)
La!ita Jalan v. Bombay Gas Co. Ltd. and Ors. (2003) 6
D SCC 107 : [2003] 3 SCR 589; Iqbal Singh Marwah
and Another v. Meenakshi Marwah and Another (2005)
4 SCC 370 : (2005) 2 SCR 708; S. Gopal Reddy v.
State of A.P. (1996) 4 SCC 596 : (1996) 3 Suppl. SCR
439; Rajinder Singh v. State of Punjab (2015) 6 SCC
477: (2015) 2 SCR 835; N.K. Jain v. CK. Shah (1991)
E 2 SCC 495 : (1991) 1 SCR 938 - relied on.
Case Law Reference
In the Judgment of Dipak Misra, J.
(2015) u sec 725 referred to Para 10
F
(2014] 10 SCR 812 referred to Para 10
(2009) 9 sec 1 relied on Para 10
(2003) 4 Suppl. SCR 978 held inapplicable Para 10
(1986) 2 SCR 169 referred to Para 11
G
(1999) 1 SCR 669 referred to Para 11
[2008) 7 SCR 673 referred to Para 11
(2012) 1 SCR 363 referred to Para 11
(2014) 8 SCR 1021 referred to Para 11
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 937
(GOVT. OF NCT OF DELHI)

(1965] SCR 364 referred to Para 12 A
(1987] 1 SCR 516 referred to Para 12
(2005] 1 SCR 1019 relied on Para 12
(1994] 1 SCR 445 relied on Para 12
[1984] 2 SCR 173
• •C

referred to Para 14 B
[1990] 1 SCR 483 referred to Para 14
[1983] 1 SCR 393 referred to Para 14
[2017] 1 SCR 158 referred to Para 28
AIR 1960 SC 122 followed Para 29 c
(1992] 1 SCR 917 relied on Para 30
[1957] SCR 930 referred to Para 33
(1958] SCR 1 referred to Para 35
D
[2000] 1 Suppl. SCR 69 referred to Para 41
(1982] 3 SCR 583 referred to Para 41
[2013] 6 SCR 949 referred to Para 43
AIR 1966 SC 1987 referred to Para 45
E
(1987] 2 SCR 1 referred to Para 49
[2001] 1 SCR 221 referred to Para 50
[1976] 1 SCR 626 referred to Para 50
[2009] 3 SCR 735 referred to Para 51 F
[1953) SCR 677 referred to Para 52
[1979] 1 SCR 26 referred to Para 53
(1988] 2 Suppl. SCR 24 referred to Para 54
[2004] 6 Suppl. SCR 332 referred to Para 55 G
[2002] 2 SCR 383 followed Para 55
[1995) 3 Suppl. SCR 702 relied on Para 56
(1985) 4 sec 11 referred to Para 56
H
938 SUPREME COURT REPORTS [2017] 7 S.C.R.

A (2017) 5 sec 465 referred to Para 58
[1988) 2 Suppl. SCR 528 referred to Para 58
(1996) 3 Suppl. SCR 439 referred to Para 59
(2003] 2 SCR 799 referred to Para 59
B (1986) 2 SCR 537 referred to Para 60
(1985) 2 Suppl. SCR 711 referred to Para 60
[1978) 3 SCR 98 referred to Para 61
[2014] 11 SCR 463 followed Para 85
c (2016] 12 SCR 131 relied on Para 86
In the judgment of R. F. Nariman 2 J.
(1972) 1 SCR 726 referred to Para 13
[1979) 1 SCR 1054 referred to Para 17
D
[1979) 3 SCR 1133 referred to Para 18
[1994) 1 SCR 445 referred to Para 19
[2001) 1 SCR 221 referred to Para 20
[1977) 2 SCR 392 referred to Para 21
E
[1987) 2 SCR 1 referred to Para 22
[2003) 3 SCR 589 relied on Para 25
[2005) 2 SCR 708 relied on Para 25

F [1996) 3 Suppl. SCR 439 relied on Para 26
[2015) 2 SCR 835 relied on Para 27
(1991) 1 SCR 938 relied on Para 28
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1217-1219of 2017.
G
From the Judgment and Order dated 29.06.2015 of the High Court
of Delhi at New Delhi in Criminal M. C. No. 2524/2015 & Crl. M.A.
Nos. 8839115 & 8918115.
Sanjay R. Hegde (AC), Aman Sinha, Sr.Advs.,Anil Kumar Misra,
H Pranjal Kishore, Atul Shankar Vinod, Ms. Aishwarya Bhati, Ms. Dity
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 939
(GOVT. OF NCT OF DELHI)

Apurva, Jaideep Singh, T. Gopal, K.L. Janjani, R.K. Rahore, P.K. Dey, A
Anil Hooda, B.K. Prasad, Ms. Charu Wali Khanna, Siddharth Dave,
Chirag M. Shroff, Ms. Jemtiben, AO, Siddharth Dave, Advs. for the
appearing parties.
The Judgments of the Com1 were delivered
1. Ii
by
DIPAK MISRA, J. 1. Leave granted. B
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 c
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". D
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 E
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
F
Act. As the facts 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)(1) of the Indian Penal Code (!PC) before G
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
H
940 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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 should be transferred to the Special
B
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
c videography of the proceeding as the prosecutrix mainly communicates
through gestures. The order passed in that regard read as follows:
"Vi de order dated l 5'h 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
D
arrangements be made for videographing the in-camera trial at
the time of recording of the statement of the prosecutrix. When
the evidence of the prosecutrix was sought to be recorded on l 5'h
May, 2015 the learned Judge noted that the concerned officer of
the vulnerable witness Court complex submitted that the
E 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 27'h May, 2015. It is
also informed by the learned APP on instructions from the
investigating officer that two doctors of AIIMS have been
F
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
G 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."
H 4. The matter was finally disposed ofvide order dated 29.06.2015
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 941
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

and the appellant felt aggrieved as the two main prayers, namely, (i) A
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 B
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 C
of the neuro-physician 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 D
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 E
and put forth the points on behalf of respondent No. 2. On behalf of
respondent No. I, that is, State (Government ofNCT 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 F
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 G
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 H
942 SUPREME COURT REPORTS [2017] 7 S.C.R.

A should not be conferred a restricted meaning to convey that the words
"eighteen 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
B
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
c 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 oflaw that the legislature has
conceived, it would be an anathema that the law that has been brought
D
in to protect the class, that is, child, leaves out a part ofit 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 of30 years, but in reality behaves
E 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
F
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.
G 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 ofDelhi) and others 1
,

Mofil Khan & another v. State of JlzarklzamP, Suc/1ita Srivastava &
1
c2015) l 1sec725
H ' c2015) l sec 67
MS. EERA TH. DR. MANJULA KRTPPENDORF v. STATE 943
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

another v. Chandigarh Administration3, and Tulshidas Kanolkar v. A
State of Goa 4 •

11. lt 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 B
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 c
of the POCSO 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
otliers5, Githa Hariharan (Ms.) and another v. Reserve Bank of D
India and anothet", Union of India v. Prabhakaran Vijaya Kumar
and others1 , Regional Provident Fund Commissioner v. Hooghly
Mills Company Limited and otlters8, Bangalore Turf Club Limited
v. Regional Director, Employees' State Insurance Corporation 9 •
E
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 interest
and well being ofthe children at every stage ofjudicial proceeding including
children friendly procedure, recording of evidence and establishment of F
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 oflegislation. Learned counsel
would submit that when such a person is incapable of understanding
' (2009) 9 sec 1 G
• (2003) 8 sec 590
'(1986) 2 sec 614
• (1999) 2 sec 228
1
c2008) 9 sec 521
' c2012) 2 sec 489
• (2014) 9 sec 657
H
944 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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"
B
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) Act, 2015 to
highlight that the legislative intention there is explicit with regard to mental
c capacity of a person which would have a relevant factor to determine
the forum of trial. It is further contended by him that ifthe 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.
D
Learned counsel in his written note of submissions has placed reliance
upon Sheikh Gu/fan & others v. Sanat Kumar Ganguli' 0 , Yudhishter
v. As/wk Kumar", Pratap Singh v. State ofJliarkha11d and another 12 ,
Directorate of Enforcement v. Deepak Mahajan and anotlter' 3•
13. Mr. Dave, while supporting the stand of Mr. Dey has
E
commended us to the decision in Deepak Mahajan (supra).
14. Mr. Hegde, learned senior counsel, who has been engaged by
the Court to assist on behalfofrespondent No. 2, has referred to Article
I 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
F
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
distjnction, it would have included within the protective ambit of the
G 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
IO AIR 1965 SC 1839
11
c1987) 1 sec 204
12
c2005) 3 sec 551
H " (1994) 3 sec 440
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 945
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

and unambiguous, it should be given its ordinary literal meaning. It is A
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 Court ought to adopt the actual grammatical meaning B
and for the said purpose, he has drawn inspiration from Bennion on
Statutory Interpretation, 5'h Edn. p.825. He would put forth the stand
that ifthe 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 C
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. D
Sharpe 14 [British Columbia Court of Appeal], R v. Cockerton 15 [Kings
Hench] and Ogg-Moss v. R 16 [Supreme Court of Canada). According
to him, when the definition of"child" in 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 others 17
and Lt. Col. Prithi Pal Singh Bedi etc. v. Union ofIndia and others 18 • E
15. Learned senior counsel would submit that if mental age is
read into the definition of the "child", it will be againsUhe 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 F
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 G

14
BCCA 1999 416
ts (1901] 1KB726
16
[1984] 2 SCR 173
11
(1990) 2 sec 378
" (1982) 3 sec 140: [1983] l scR 393 H
946 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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
B 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.
c 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
D 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
E 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
F
with due regard for 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
of Special Courts for speedy trial of such offences.
G
5.
6.
,,
7.
17. The Preamble of the POCSO Act reads thus:
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 947
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

"An Act to protect children from offences of sexual assault, sexual A
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; B
AND WHEREAS, the Government oflndia 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 standards to be followed by all State parties
in securing the best interests of the child; c
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 D
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 E
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
F
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". G
18. The purpose of referring to the Statement of Objects and
Reasons and the Preamble of the POCSO Act is to 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
H
948 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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, -
B
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
c 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 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 child-friendly procedure. Dignity of the child
D has been laid immense emphasis in the scheme oflegislation. 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.

E 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
F what can constitute aggravated penetration sexual assault. It is extremely
significant to note that Section 5(a) 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
G 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.
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 949
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

2 I. Part C of Chapter II deals with sexual assault and punishment A
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.
B
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 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. C
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 D
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 E
respect of whom any offence has been committed under the Act is to be
conducted in accordance with Section l 64A of the CrPC. It is also
significant to note that the said examination has to be done 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 ·F
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 G
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
H
950 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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 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.
B
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
c 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
D 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
E 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 opinion of the Special Court the child has
suffered loss or injury as a result of that offence.
(3) Where the Special Court, under sub-section (8) of section 33
F of the Act read with sub-sections (2) and (3) of section 357 A 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:-
G (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
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 951
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

offence, including absence from school due to mental trauma, A
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 B
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;
c
(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; D
(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 E
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 F
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. G
(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 relief under
any other rules or scheme of the Central Government or State
Government."
H
952 SUPREME COURT REPORTS [2017) 7 S.C.R.

A 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
B
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
c appellant would like us to perceive the provision through the said magnified
glass using different lens. In Cabell v. Markhan 19 Learned 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
D 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
E imaginative discovery is the surest guide to their meaning."
27. The House of Lords in Regina (Q11intavalle) v. Secretary
of State for Health 20 observed:
"The pendulum has swung towards purposive methods of
construction. This change was not initiated by the teleological
F 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
G towards purposive interpretation is not in doubt. The qualification
is that the degree ofliberality permitted is influenced by the context,
e.g. social welfare legislation and tax statutes may have to be
19 148 F 2d 737 (2d Cir 1945)
20 (2003) UKHL 13: (2003) 2 AC 687: (2003) 2 WLR 692 (HL)
21 (1877) LR 2 AC 743 at p. 763 (HL)
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 953
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

approached somewhat differently.... " A
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 electorate-centric interpretation rather B
than candidate-centric one. The submission is that the purposive
interpretation has become the elan vital of statµtory 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 C
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 of a concept invites a hazard whereas
a broad exposition enlarges the sweep and achieves the statutory purpose. D
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 E
possess such tool to fly in the realm of fanciful area and confer a different
meaning. His ability to create in the name ofjudicial 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 F
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 Kairon 23 , 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 G
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
22
(2017) 2 sec 629
23
AIR 1960 SC 122 H
954 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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
B
Court that Lambardar is a revenue officer and village accountant within
the meaning of clause (f) of sub-section (7) of Section 123 of the 1951
Act. While dealing with the 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
C 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
D 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."

E 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. Kai/ash Chand
Mahajan & others24 , the Court referred to a passage from Francis
F Bennion's Statutory Interpretation (1984 edn.) which illustrates the
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,
G
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 oflegislation is to
provide a remedy for the malady, on the contrary, the legislative intention

H
24 I 992 supp. (2) sec 35 I
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 955
(GOVT. OF NCT OF DELHI) [DIPAK MISR~, J.]

relates to the meaning from the exposition of the remedy as enacted. A
The Court further ruled that for determining the purpose oflegislation, 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,
B
it is open to the court to look into the 'Statement of Objects and Reasons'
of the 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 c
. 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 ofIndia
and another5, Sections 4 and 5 of the Prize Competitions Act (42 of D
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 cross-
word prize competition, a missing-word prize competition, a picture prize E
competition or by any other name), in which prizes are offered for the
solution of any puzzle based upon the building up, arrangement,
combination or permutation ofletters, 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 F
. 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, ofcourse, be G
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
" AIR 1957 SC 628
H
956 SUPREME COURT REPORTS [2017) 7 S.C.R.

A Interpretation of Statutes, I 0th Edn., p. 19, "has, in general, but prima
facie preference. 'fo arrive at the real meaning, it is always necessary
to get an exact conception of the aim, scope and object of the whole
Act; to consider, according to Lord Coke: (J) 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
B
( 4) The reason of the remedy". Turning to the history of the legislation,
various provisions of the said Act and doctrine ofseverability, 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
c difference between the two classes of competitions is as clear-cut 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 re·striction of the impugned
D
provisions to competitions of a gambling character affect either the texture
or the colour of the Act; nor do the provisions require to be touched and
re-written 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,
E 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 idenfified two clear cut classes of
F 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.
G
35. In Commissioner of Income-tax, 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
26
AIR 1957 SC 832
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 957
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

be primarily gathered from the words which are used. It is only when A
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 B
of the Income-Tax 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 c
intention of the Legislature in doing so was to include the 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.
Ifthat was the position, howsoever wide the words "any individual" D
or "such individual" as used in Section 16(3) and Section I 6(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 E
the whole of the Section I 6(3)(a) can be read harmoniously in the
manner above comprehending within its scope all the four cases
specified in sub-clauses (i) to (iv) thereof and so also Section
16(3)(b).
We are therefore of opinion that the words "any individual" and F
"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 ofthc species,
even though by a disjunctive reading of the expression "the wife"
or "a minor child" of"such individual" in Section l 6(3)(a) and the G
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
27
1909AC 147
H
958 SUPREME COURT REPORTS [2017] 7 S.C.R.

A mothers also within the connotation of these words. Such inclusion
which involves different interpretations of the words "any
individual" or "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."
B
37. Though the case related to the interpretation ofa 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
c 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 Gu/fan (supra), the controversy related to
construction of Section 30(c) of the Calcutta Thika Tenancy Act, 1949.
D 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
E (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
F 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
G 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 that lands comprised in the
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 959
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

improvement schemes should be exempted from the application of the A
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 B
exceptions to the applicability ofbeneficent 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 C
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 reasonable interpretation. The acceptability
of the alternative reasonable construction should be within the permissible D
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 E
to resolve the conflicting views between Arnit Das v. State of Bihar2 8
and Umesh Chandra v. State of Rajasthan 29 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 F
Section 2 of the said Act that dealt with presumption and determination
of age, and Section 32 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 ofage of juvenile the date of production would be the G
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
" (2000) s sec 488
" ( 1982) 2 sec 202
H
960 SUPREME COURT REPORTS (2017] 7 S.C.R.

A 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
B
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 ofjuveniles and the Act being a benevolent legislation,
an interpretation must be given which would advance the cause of the
c 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
D 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 30 , the
Court, taking into consideration the conduct of the police for not registering
E a case w1der Section 377 IPC against the accused, the agony undergone
by a child of 11 years with moderate intellectual disability, non-reporting
of offence ofrape committed on her after having witnessed the incident
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
F 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
G 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.
" (2013) 5 sec 546
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 961
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

45. Jn Chandra Mohan v. State of Uttar Pradesh and others 31 , A
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 harmonious
working of the Constitution and eschew the other which will lead to
absurdity or give rise to practical inconvenience or make well established
B
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:
c
"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 D
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 E
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 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 F
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. G
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
31
AIR 1966 SC 1987
· " (1987) 1 sec 424 H
962 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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
B 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,
C 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
D 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
E 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
F 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 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
G 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 lnc. 34 and State of Haryana & others
" (2001) 4 sec 139
34 (1968) 3 WLR 714, p.732,
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 963
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

v. Sampuran Singh & others35 • The Court further observed that by no A
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
B
purpose or 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 c
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 D
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. E
36
51. In Central Bank of India v. State of Kera/a and others ,
the three-Judge 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
~~ . F

'"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 G
there be any such thing, is of little value in interpreting statutes' .
. . . in determining the meaning of any word or phrase in a statute

" (1975) 2 sec s10
" (2009) 4 sec 94 H
964 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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
B
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."

52. The Court thereafter referred to the authorities in Poppatlal
C Shah v. State of Madras 37 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
D
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.
E
Di.xitulu & others 39 , 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 legislati~n is precise
and plain and thus 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
G
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 well-recognised rules of construction, such as its legislative
37
AIR 1953 SC 274
38(2002) I WLR 2956 : (2002) 4 All ER 654 (HL)
H " (t 979) 2 sec 34
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 965
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

history, the basic scheme and framework of the statute as a whole, each A
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.
B
Consequence of preference of one on the other also gets accent.
54. In Kehar Singh & Ors v. State (Delhi Adnm.)4°, 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 c
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
oflegislative intention. It implies only a power of choice where differing D
constructions are possible and different meanings are available. As is
manifest, the individual notions should not come in the way oflegislative
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 E
observed that an argument founded on what is claimed to be the intention
of 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 ifthe 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 F
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 G
the case of clear necessity and when reason for it is found in the
four comers of the statute itself but at the same time a casus
40 <1988) 3 sec 609
41
(2oos) 1 sec 289
" AIR 2002 SC 1334 H
966 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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 .... "
B
56. In Hindustan Lever Ltd. v. Ashok Vishnu Kate and others4 3,
the question arose for entertaining complaint filed under Section 28( 1)
of the Maharashtra Recognition ofTrade Union and Prevention ofUnfair
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
c 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
D 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 two-
Judge Bench referred to the decision in Workmen ofAmerican Express
E International Banking Corporation v. Management of American
Express International Banking Corporation 44 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
F 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 ofits misapplication must be recognised
and reduced. Judges ought to be more concerned with the 'colour',
G the 'content' and the 'context' of such statutes (we have borrowed
the words from Lord Wilberforce's opinion in Prenn v.
Simmonds 45 ). In the same opinion Lord Wilberforce pointed out
that law is not to be left behind in some island ofliteral interpretation
"(1995) 6 sec 326
" (1985) 4 sec 11
H 45
(1971) 3 All ER 237: (1971) I WLR 1381
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 967
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

but is to enquire beyond the language, unisolated from the matrix A
of facts in whic_h 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 B
contention was raised that the said provision violated Articles 14 and 15
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 c
interest in joint family property), a:e-
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;" D
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'? E
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:
F
"16. While both the parents are duty-bound 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 G
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 H
968 SUPREME COURT REPORTS [2017] 7 S.C.R.

A "absent" for the purposes of Section 6(a) of the HMG Act and
Section l 9(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
B Gujarat and another1 6 , the Court, while interpreting Section 36-B of
the Advocates Act, 1961, quoted the following observations ofSabyasachi
Mukharji, J. (as his Lordship then was) in Atma Ram Mittal v. lshwar
Singh Punia47 :
"9 . ... Blackstone tells us that the fairest and most rational method
c to interpret the will of the legislator is by exploring his intentions at
the time when the law. was made, by signs most natural and
probable. And these signs are either the words, the context, the
subject-matter, the effects and consequence, or the spirit and
reason of the law. See Commentaries on the Laws of England
(facsimile of !st Edn. of 1765, University of Chicago Press, 1979,
D Vol. 1, p. 59). Mukherjea, J. as the learned Chief Justice then
was, in Poppatlal Shah v. State of Madras 48 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
E 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 Waldhof-Aschafjenburg
A.G 49 We are clearly of the opinion that having regard to the
F
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
50
A.P. and High Court of Gujarat and another v. Gujarat Kishan
Mazdoor Panchayat and otlzers51 and opined:
G
4
' (2017) 5 sec 465
" o988) 4 sec 284
4
AIR 1953 SC 274
'
49
1975 AC 591: (1975) 2 WLR 513 (HL)
'° (1996) 4 sec 596
H ' 1 (2003)4SCC712
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 969
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

"28. The aforesaid authorities give stress on textual interpretation A
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 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. ... " B

60. In Raghunandan Saran Ashok Saran v. Pearey Lal.
Workshop 52 , 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. Gotla 53 , it has been c
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 D
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: E

"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 law-giver. 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 F
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 G
the language of the statute to make it accord with the presumed
intention of the legislature .... "

" (1986) 3 sec 38
" (1985) 4 sec 343
,. (t 978) 1 sec 636 H
970 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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
B
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 purp_osive construction
has been adopted keeping in view the text and the context of the
legislation, the mischief it intends to obliterate and the fundamental
c 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
D
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
E 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 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
F
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
G 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
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 971
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

the legislature. Quite apart from, the Court can take aid of causus A
omissus, only in a case of clear necessity and further it should be discerned
from the four comer of the statute. If the meaning is intelligible, the said
principle has no entry. lt 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 B
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 C
assault, sexual harassment and abuse with due regard to safeguard the
interest and well being of the children at every stage ofjudicial 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 D
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. E
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 - (I) the
appointment of an intermediary in accordance with the provisions of F
Section l 70A 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 was 19 years old and the State led evidence G
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 l 70A( 1) of the said Act. Though
" [2014) ZAGPPHC 1017
H
972 SUPREME COURT REPORTS [2017] 7 S.C.R.

A the amendment of Section l 70A (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
B
before the amendment came into force.
65. The matter travelled to the Supreme Court ofAppeal of South
Africa in Daniel Johannes Stephanus Van Der Bank v. The State 56
which took note of the fact that intermediary was appointed and how he
had assisted the complainant in testifying. Leave granted by the Supreme
c 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 l 70A of the
Criminal Procedure Act as applicable at the time she gave
D evidence."
The Supreme Court referred to Section l 70A. On the date the
complainant testified, the said Section read as follows:
"Section I 70A. Evidence through intermediaries.-( l) Whenever
E 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
F 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
l 70A. The Apex Court took note of the subsequent amendment made in
2007 by Section 68 of Act 32 of2007 to include not only witnesses who
G were biologically under the age of eighteen 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:

" [2016] ZASCA I 0
" 2006 (2) SACR 594 (E)
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 973
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

"In Dayimani, the complainant was regarded as 'moderately A
mentally retarded' ands l 70A 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 B
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. c
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 - D
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 .... "
In the ultimate analysis, the Supreme Court of Appeal of South
Africa confirmed the view of the High Court by holding that the trial E
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. F
66. In Director of Public Prosecutions, Transvaal v. Minister
of Justice and Constitutional Development and others 58 the
Constitutional Court of South Africa while consideri11g the challenge to
the South African Criminal Law (Sexual Offences and Related Matters)
Amendment Act observed:
G
"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
"(2009) ZACC 8; (2009) 4 SA 222 (CC); (2009) 2 SACR 130 (CC); (2009) 7 BCLR
637 (CC) H
974 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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 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 .... "
B
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
c child sensitive.
68. In Her Majesty The Queen v. D.A.l. 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
D (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 victim was an adult aged about 26
years and her mental age was assessed at 6 years old. She was sexually
E 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
F of Appeal, as stated earlier. The majority while disagreeing speaking
through the learned Chief Justice adverted to the principle of competence
to testify, concept ofadmissibility 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
G 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 oath or affirm
must not only be able to communicate the evidence and promise to tell
59 [2012] 1 RCS 149
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 975
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

the truth, but must also understand the nature of a promise to tell the A
truth. The majority disagreeing with the said submission analysed the
historical background, legislative content and the intention of the
Parliament and ultimately held thus:
"34. The foregoing reasons make a strong case that s. 16(3) should
be read as requiring only two requirements for competence of an B
adult with mental disabilities: (I) ability to communicate the
evidence; and (2) a promise to tell the truth .... "
It is apt to note here that two other arguments were raised in
support of this interpretation -first, without a further requirement of an
understanding of the obligation to tell the truth, a promise to tell the truth c
is an "empty gesture"; second, Parliament's failure in 2005 to extend to
adults with mental disabilities the Section 16. l (7) prohibition on the
questioning of children means that it intended this questioning to
continue for adults. The Court, dealing with the first aspect, held that
the shortcoming in the said submission was that it departed from the
plain words of Section 16(3), on the basis of an assumption that it was D
unsupported by any evidence and contrary to Parliament's intent.
Imposing an additional qualitative condition for competence that is not
provided in the text of Section 16(3) would demand compelling
demonstration that a promise to tell the truth cannot amount to a meaningful
procedure for adults with mental disabilities. That apart, when such a E
witness promises to tell the truth, it reinforces the seriousness of the
occasion and the need to do so. In dealing with the evidence of children
in Section 16.1, Parliament held that a promise to tell the truth was all
that is required of a child capable of responding to questions. Parliament
did not think a child's promise, without more, is an empty gesture.
F
69. The second argument, raised in support of the proposition that
"promising to tell the truth" in Section 16(3) implies a requirement that
the witness must show that she understands the nature of the obligation
to tell the truth is that Parliament has not enacted a ban on questioning
adult witnesses with mental disabilities on the nature of the obligation to
tell the truth, as it did for child witnesses in 2005 in Section 16. l (7). To G
understand this said argument, the Court briefly traced the history of
Section 16. l., and noted the submission:
"[52] The final and most compelling answer to the equivalency
argument is simply this: When it comes to testimonial competence,
H
976 SUPREME COURT REPORTS (2017] 7 S.C.R.

A precisely what, one may ask, is the difference between an adult
with the mental capacity ofa six-year-old, and a six-year"old with
the mental capacity of a six-year-old? Parliament, by applying
essentially the same test to both under s. 16(3) and s.
16.1(3) and (6) of the Canada Evi.denceAct, implicitly finds no
difference. In my view, judges should not import one.
B
[53] I conclude thats. 16(3) of the Canada Evidence Act,
properly interpreted, establishes two requirements for an adult
with mental disabilities to take the stand: the ability to communicate
the evidence and a promise to tell the truth. A further requirement
that the witness demonstrate that she understands the nature of
c the obligation to tell the truth should not be read into the provision.
x x x x

[63] I conclude that, insofar as the authorities suggest that
"promising to tell the truth" ins. 16(3) should be read as requiring
D an abstract inquiry into an understanding of the obligation to tell
the truth, they should be rejected. All that is required is that the
witness be able to communicate the evidence and promise to tell
the truth."
Eventually, the majority ruled that the threshold of reliability for
E 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 (ifany) on hearsay
admissibility. Ultimately, the Court allowed the appeal and set aside the
F 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
G 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 ofSouthAfrica has spoken about the requirement
of sensitivity to a child. Both the aspects, according to me, are
H
MS. EERA TH. DR. MANJULA KRlPPENDORF v. STATE 977
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

distinguishable. As far as the majority view of the Supreme Court of A
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
B
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 II
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, c
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 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 accused-appellant by upholding the conviction but reduced the D
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 E
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 ofhelpless resignation could not
be treated as a consent. Proceeding further, the Court said for constituting F
consent there must be exercise of intelligence based on the knowledge
of the significance and the moral effect of 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 G
is the victim. In sub-section (2) of Section 376, clause lf) relates
to physical age of a woman under 12 years of age. In such a case
sentence higher than that prescribed for one under sub-section
(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
H
978 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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 sub-section (2) of Section 376."
B
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
c to various Sections ofIPC, 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 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
D 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.
E 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.
F 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 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
G 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
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 979
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

been provided in the IPC is on a different base and foundation. Such a 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.
B

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 c
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 D
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 government-run welfare institution and
after discovery ofher pregnancy, the administration of the Union Territory E
of Chandigarh had approached the High Court for the termination ofher
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, F
directed the woman to undergo abortion, Special Leave to Appeal was
preferred before this Court. The three-Judge 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 G
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
H
980 SUPREME COURT REPORTS [2017] 7 S.C.R.

A such as lack 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
B
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
c choices is also a dimension of "personal liberty" as understood
under Article 21 of the Constitution of India. lt 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
D 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.
Furthennore, women are also free to choose birth control methods
such as undergoing sterilisation procedures. Taken to their logical
E 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
F only permitted when the conditions0 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:
G "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
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 981
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

Section 3(4)(a) of the 1971 Act which reads thus: A
"(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 B
in 2002 by way of which the word "lunatic" was replaced by the
expression "mentally ill person" in 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. c
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 D
"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 E
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 legislative provisions in the
various Acts clearly show that persons who are in a condition of"mental
F
retardation" should ordinarily be treated differently from those who are
found to be "mentally ill". While a guardian can make decisions on
behalfof 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 G
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
H
982 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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
B
illness" and "mental retardation" has been collapsed. The same
has been done for the purpose of providing affirmative action in
public employment and education as well as for the purpose of
implementing anti-discrimination measures. The High Court has
also taken note of the provisions in IPC which lay down strong
c 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
D
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
E 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
F 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,
G
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 or to engage in any other meaningful occupation
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 983
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

to the fullest possible extent of his capabilities. A
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 B
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 well-being and
interests.
6. The mentally retarded person has a right to protection from c
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 D
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 E
by qualified experts and must be subject to periodic review and to
the right of appeal to higher authorities."
77. The two-Judge 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 F
persons which 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 G
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
H
984 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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 weight age being given to medical opinion for deciding whether
B
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 of mental retardation or developmental delay
c 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 oflate 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
D are capable ofliving 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
E 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
F 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"."
G
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 itselfalive to the fact that
the Parliament has always kept the mental retarded person and mentally
ill person in two different compartments.
H
MS. EERA TH. DR. MANruLA KRIPPENDORF v. STATE 985
(GOVT. OF NCT OF DELHD [DIPAK MISRA, J.]

80. Mr. Hegde, learned senior counsel appearing for respondent A
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). Ill the said case, the Court B
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.
82. The situation can be viewed from another aspect. The POCSO c
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 D
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 E
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 of2016) 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 purpose of stating so is that the Parliament has
deliberately fixed the age of the child and it is in the prism ofbiological F
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. G
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 H
986 SUPREME COURT REPORTS (2017] 7 S.C.R.

A 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
the sphere oflegislature. Tq e1~borate, an addition of the word "mental"
B
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
c 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,
D
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.
84. In this regard, I may profitably refer to Section 164 CrPC
which deals with recording of confessions and statement. Section
E 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 examination-in-chief, as
specified in section 13 7 of the Indian Evidence Act, 1872 such
F that the maker of the statement can be cross-examined 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
G 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
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 987
(GOVT. OF NCT OF DELHI) [DIPAK MISRA, J.]

state that stretching of the words "age" and "year" would be encroaching A
upon the legislative function. There is no necessity. In Census
Commissioner & others v. R. Krishnamurthy60 , the three-Judge 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 B
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: c
"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 D
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 E .
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."
86. In State of Uttar Pradesh and others v. Subhash Chandra
Jaiswal and others63 , it has been held:
F
"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 oflaw.
G
'° (2015) 2 sec 796
61
Bacon, "Essays: Of Judicature in Vol. I The Works of Francis Bacon" (Montague,
Basil, Esq (Eds.), Philadelphia: A Harl, 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) 51ABAJ330 at p. 332
" (2011) 5 sec 163
H
988 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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 law-maker merely for an exhibition of judicial
B 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.
C 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 breathed his last and 'there is a medical certificate
fromAIIMS as regards the mental disability of the victim, there should
be no further enquiry as envisaged under Section 357A of the CrPC.
D The said provision reads as follows:
"357A Victim compensation scheme. - (I) Every State
Government in co-ordination 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.
E
(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 sub-section (1 ).
F (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.
G (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
H 64
(2006) 2 sec 670
MS. EERA TH. DR. MANTIJLA KRIPPENDORF v. STATE 989
(GOVT. OF NCT OF DELHI)

under sub-section (4), the State or the District Legal Services A
Authority shall, after due 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 first-aid facility or medical benefits to be made available B
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
c
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 D
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
fightingthe /is for some time to come within the 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 E
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 F
the case.
89. The appeals are disposed of, accordingly.
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 G
of powers doctrine where the judiciary should not transgress from the
field ofjudicial law making into the field oflegislative 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 H
990 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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 intemreting the law as it
stands, and this being the case, he has exhorted us not to go against the
B plain literal meaning of the statute. ·
3. Since Mr. Hegde's argument raises the constitutional spectre
of separation ofpowers, 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 oflndia, which are set out hereinbelow:-
c " 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.
D (I) Subject to the provisions of this Constitution, Parliament may
make laws for the whole or any part of the territory ofTndia, 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
E the ground that it would have extra-territorial operation."
4. That the Legislature cannot 'declare' law is embedded in Anglo
Saxon jurisprudence. Bills of attainder, which used to be passed by
Parliament in England, have never been passed from the 18'11 century
onwards. A legislative judgment is anathema. As early as 1789, the U.S.
Constitution expressly outlawed bills of attainder vi de Article I Section
F
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
G [ 1584] declared as under:
"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:-
H l st. What was the common law before the making of the Act,
MS. EERA TH. DR. MANJULA KRTPPENDORF v. STATE 991
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

2nd. What was the mischief and defect for which the common A
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 B
the mischief, and advance the remedy, and to suppress subtle
inventions and evasions for continuance of the mischief, and pro
privalo commodo, and to add force and life to the cure and
remedy, according to the true intent of the makers of the Act, pro
bona publico."
5. Several centuries later, the Privy Council, (in a case which c
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 D
be taken from the bare words of the Act. We cannot fish out
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
E
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 F
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,
G
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
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992 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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:-
"! have been long and deeply impressed with the wisdom of the
rule, now, I believe, universally adopted, at least in the Courts of
B 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 absurditv, 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
c 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
D been described as the 'Golden Rule' of interpretation of statutes. The
construction ofa 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,
E
the Privy Council added that the text must necessarily be construed with
the aid of the context of the words 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
F 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 ofa statute
is not sacrosanct, and can, in certain exceptional circumstances, be
G
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
H U.S.418:
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 993
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

"But it is not necessarily true that income means the same thing in A
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." 1
9. Judge Learned Hand of the Court of Appeals New York also B
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 c
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 D
it, regardless of imprecision in its expression." (at page 662)
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 E
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 F
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
G
1 Interestingly, Charles Evans Hughes argued the case on behalfof 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 11th Chief
Justice of the Supreme Court of the United States, being appointed in 1930 and having
· retired in 1941.
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994 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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."
B
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 to strike the balance." (at page Nos.375 and 376)
11. Added to these problems is the problem of inept draftsmanship.
c 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.
D 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.
E 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] I All ER 466, Lord
Lord Wilberforce, lamented:
F "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 back to
(a), (b) or (c) with a connecting link described as similarity in
G
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
H is meant whether this is the same thing as actual use, or whether
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 995
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

the word again introduces the conception of purpose. Then on the A
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 B
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) C
13. The Indian Income Tax Act, 1960 has also been the subject
matter ofjudicial criticism. Often, amendment follows upon amendment
making the numbering and the meaning of its sections and sub-sections
both bizarre and unintelligible. One such criticism by Hegde, J. in
Commissioner of Income Tax v. Distributor (Baroda) (P) Ltd., D
(1972) 4 sec 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 E
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-Aofthe Act is more understandable and F
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, G
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
H
996 SUPREME COURT REPORTS [2017] 7 S.C.R.

A a statute meant. (See Dias' jurisprudence Second edition - see page 110
footnote 2). The whole 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:
B "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?

c 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
D 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
E the guise of creative interpretation they actually step outside the
'Lakshman Rekha'. As Justice Cardozo has 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 ofJudicial Process, P. 141). Opposed to this rather conservative
F 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."
G 17. The Supreme Court of India has echoed the aforesaid
statement in at least two judgments. In V.C. Rangadurai v. D. Gopalan
& Others, 19791 SCR I 054, 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
H of punitive pigeon holes, but we may note that words grow in
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 997
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

content with time and circumstance, that phrases are flexible in A
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 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 B
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-Aofthe Constitution.
xx xxxx
c
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, D
and is within the court's province." (at pages I 059 and I 060)
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:
E
"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 engineers its way to discern meaning when
a new construction with a view to rationalisation is needed." (at
page 1155) F
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 G
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 Edu. at page
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998 SUPREME COURT REPORTS (2017] 7 S.C.R.

A 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
B 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 ofnecessity, or the absolute intractability
of the language used."
c 26. In Seaford Court Estates Ltd. v. Asher ((1949) 2All 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
D 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
E the creases."
27. Though the above observations of Lord Denning were
disapproved in appeal by the House of Lords in Magar and St.
Mellons v. Newport Corpn. ((195 I) 2 All ER 839 (HL)] Sarkar,
J. speaking for the Constitution Bench in M Pentiah v. Muddala
F Veeramallappa ((1961) 2 SCR 295 :AIR 1961SC1107] adopted
that reasoning of Lord Penning. Subsequently also, Beg, CJ.
in Bangalore Water Supply and Sewerage Board v. A.
Rajappa ((1978) 2 SCC213: 1978 SCC (L&S) 215: AIR 1978
SC 548] approved the observations ofLord Denning stating thus:
(SCC p. 285, para 148)
G
"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 the legislature where an enactment leaves its own
intentions in much too nebulous or uncertain a state."
H (emphasis supplied)
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 999
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

28. It will be befitting, in this context, to recall the view expressed A
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 B
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." C
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 D
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.
A.P. Sen, J. in Organo Chemical Industries v. Union of E
India [(1979) 4 sec 573 : 1980 sec (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 oflegislation 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." F
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 G
to455)
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:-
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1000 SUPREME COURT REPORTS [2017] 7 S.C.R.

A "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 fundamental rule. There is no doubt a
B
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)
c 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
D
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
E 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 concurringjudgm~nt of Beg, J. The learned Judge put it rather well
when he said:
F "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
G 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
H the statute as a whole; thirdly, by the preamble which could supply
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE I 00 I
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

the "key" to the meaning of the statute in cases of uncertainty or A
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 B
application of the MischiefRule laid down in Heydon scase long
ago." [para 28]
22. In the celebrated judgment of Reserve Bank of India v.
Peerless General Finance & Investment Co. Ltd. and Others,
(1987) 1 SCC 424, 0. Chinnappa Reddy, J. stated:-
"Interpretation must depend on the text and the context. They are C
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 D
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 E
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. F
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 : (I 981) I SCR 80 I : 51 Com Cas 464] and we find no reason G
to depart from the Court's construction." [para 33]
23. Indeed, the modem 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
H
1002 SUPREME COURT REPORTS [2017) 7 S.C.R.

A 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
B 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,
c 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
D been to give at least very great and often decisive weight to the
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 oflegislative measures of the European Union
and in light of the House of Lords' decision in Pepper (Inspector
of Taxes) v. Hart [1993) I All E. R. 42, [ 1993] A.C 593. I will not
E 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
F interpretation of legislation, has to balance these considerations."
And in R. (Quintavalle) v. Secretary of State for Health, [2003)
2All 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,
G 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
H of interpreting the meaning of any writing: be it a statute, a
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 1003
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

contract, or anything else. But it is one of the surest indexes A
of a mature 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.'
The pendulum has swung towards purposive methods of B
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 C
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 D
with the conclusion of the Court of Appeal thats 1(1) of the 1990
Act must be construed in a purposive way." (at 122, 123)2
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: E
"It is well settled that at common law, apart from any reliance
upon 1SAB of the Acts Interpretation Act 1901 (Cth), the court
may have regard to reports oflaw reform bodies to ascertain the
mischief which a statute is intended to cure. [Black-Clawson
International Ltd v Papierwerke Waldhof-Aschaffenburg F
[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 G

2 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 .•
H
1004 SUPREME COURT REPORTS (2017] 7 S.C.R.

A 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
B
Ltd (1985) HCA 41!;"'(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.), ifthe apparently plain words of a provision are read
c 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
.ofresult may assist the court in preferring to the literal meaning
an alternative construction which, by the steps identified above, is
reasonably open and more closely conforms to the legislative intent.
D
[Cooper Brookes (Wollongong) Pty Ltd v Federal
Commissioner of Taxation (1981) 147 CLR 297 at 320-321)."
24. It is thus clear on a reading of English, U.S., Australian and
our own Supreme Court judgments that the 'Lakshman Rekha' has in
fact been extended to move away from the strictly literal rule of
E interpretation back to the rule of the old English case ofHeydon, where
the Court must have recourse to the purpose, object, text, and context of
a particular provision before arriving at a judicial result. In fact, the
wheel has turned full circle. It started out by the rule as stated in 1584
in Heydon's case, which was then waylaid by the literal interpretation
F rule laid down by the Privy Council and the House of Lords in the mid
1800s, and has come back to restate the rule somewhat in terms of what
was most felicitously put over 400 years ago in Heydon's case.
25. Coming to the statute at hand, it was argued before us that
even though the statute is a beneficial one, it is penal as well, and that
G 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
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 1005
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

enacting an offence or imposing a penalty is to be strictly construed A
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 B
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 c
sec 300 : 1977 sec (Cri) 97 : AIR 1977 sc 435] . In Supdt.
and Remembrancer of Legal Affairs to Govt. of W.B. v. Abani
Maity [(1979) 4 sec 85: 1979 sec (Cri) 902: AIR 1979 sc
1029] the word "may" occurring in Section 64 of the Bengal Excise
Act was interpreted to mean "must" and it was held that the D
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 E
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
F
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
and389. G

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:
H
1006 SUPREME COURT REPORTS [2017] 7 S.C.R.

A "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
B
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 defmition 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
c Act, "demand of dowry" as a consideration for a proposed
marriage would also come within the meaning of the expression
dowry under the Act. Ifwe were to agree with Mr. Rao that it is
only the 'demand' made at or after maJTiage which is punishable
under Section 4 of the Act, some serious consequences, which
the legislature wanted to avoid, are bound to follow. Take for
D
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
E 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 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."
F
[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 4 77. Discussing the reach of Section 304B of the Penal Code
read with the Dowry Prohibition A ct, this Court has held:
G
"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
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 1007
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

proportions. Can it be argued that it is a penal statute and, should, A
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 Kera/a [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 B
S(l)(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)
"9. The Preamble indicates that the Act was passed as it was
expedient to make more effective provisions for the prevention c
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 D
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 E
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 F
investigation against them could be made only by police officials
of particular status and by making the sanction of the 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 G
object i.e. to prevent corruption among public servants and to
prevent harassment of the honest among them.
JO. A decision of the Judicial Committee in Dyke v.Elliott, The
Gauntlet [(1872) LR4 PC 184], cited by the learned counsel as
an aid for construction neatly states the principle and therefore H
1008 SUPREME COURT REPORTS [2017] 7 S.C.R.

A may be extracted: Lord Justice James speaking for the Board
observes at LR p. 191:
' ... No doubt all penal statutes are to b~ 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
B 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
c words and within the spirit, there a penal enactment is to be
construed, like any other instrument, according to 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
D 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
E 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 ofimprisonment is mandatory. By a majority
of3:2, the question was answered in the affirmative. Balakrishnan,
F 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 To!aram Relumal v. State of Bombay [AIR 1954
SC 496: 1954 Cri LJ 1333: (1955) 1SCR158], SCR at p. 164
G 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 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
H that it must have been intended to be included and would have
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 1009
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

been included if thought of. All penal provisions like all other A
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
B
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 modem times and now mostly the
question is 'what is true construction of the statute?' A passage C
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 D
equitable as 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 E
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
asunder: F
'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.' G
Concurring with Balakrishnan, J., Dharmadhikari, J. added:
(Standard Chartered Bank case [Standard Chartered
Bank v. Directorate of Enforcement, (2005) 4 SCC 530 : 2005
sec (Cri) 961] , sec pp. 550-51, para 36)
H
1010 SUPREME COURT REPORTS [2017] 7 S.C.R.

A ·"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 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
B
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
ofa penal statute is not ruled out by the rule of strict construction.
(See State of A.P. v. Bathu Prakasa Rao [( 1976) 3 SCC 30 I :
c 1976 SCC (Cri) 395] and also G.P. Singh on Principles of
Statut01y Interpretation, 9th Edn., 2004, Chapter 11, Synopsis
3 at pp. 754 to 756.)"
And Arnn Kumar, J., concurring with both the aforesaid Judges,
followed two earlier decisions of this Court as follows: (Standard
D Chartered Bank case [Standard Chartered Bank v. Directorate
ofEnforcement, (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 Bairam Kurnawat v. Union of India [(2003) 7 SCC 628] to
E 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 any narrow
and pedantic, literal and lexical construction may not always
be given effect to. The law would have to be interpreted having
F 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 oflaw. Criminal
jurisprudence does not say so.'
50. In M V. Javali v. Mahajan Borewel/ & Co. [( 1997) 8 SCC
G 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
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 1011
(GOVT. OF NCT, OF DELHI) [R. F. NARIMAN, J.]

subjected to it. It was held that the apparent anomalous situation A
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 can be B
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.'"
c
In keeping with these principles, in K. Prema S. Rao v. Yadla
Srinivasa Rao [(2003) 1SCC217: 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 D
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 E
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 KB481: (1949) 2.All ER 155 (CA)], KB
p.499) F
" ... He must set to work on the constnictive 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 G
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" H
1012 SUPREME COURT REPORTS [2017] 7 S.C.R.

A 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
sec (Cri) 699] , sec p. 21 o, para 18)
"18 . ... It would be appropriate to construe the expression
B '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
c 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 ofa definition of'husband'
to specifically include such persons who contract marriages
ostensibly and cohabit with such woman, in the purported
D 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
E 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
sec 721(2007) 9 sec 721 : (2007) 3 sec (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,
F 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
G 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 cmisequences
to 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.
H C.K. Shah, (1991) 2 SCC 495, this Court said:
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE .1013
(GOVT. OF NCT OF DELHI) (R. F. NARIMAN, J.]

"Relying on the aforesaid principles governing the construction of A
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 B
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 C
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 D
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 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) E
"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 F
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 G
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 H
1014 SUPREME COURT REPORTS [2017] 7 S.C.R.

A life' to the intention of the legislature .... A judge should ask
himself the question how, ifthe makers of the Aet 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."
B
(emphasis 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
c 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.
D 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
E 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.
F 2. The United Nations Convention on the Rights of Children,
ratified by India on 11 •h December, 1992, requires the State Parties
to undertakt; 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)
G 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
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE I 015
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

2007' conducted by the Ministry of Woman and Child A
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 B
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 p~otection of children from the
offences of sexual assault, sexual harassment and pornography
with due regard to safeguarding the interest and well being of the C
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
of Special Courts for speedy trial of such offences.
5. The Bill would contribute to enforcement of the right of all D
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." E
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.
F
31. Section 2( 1)(d), with which we are directly concerned, is set
out as under :
"2. Definitions : ( l) In this Act, unless the context otherwise
reqmres,-
(a) xxx xxx xxx G
(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
H
1016 SUPREME COURT REPORTS [2017) 7 S.C.R.

A refers to "any person" an elastic 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
B 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
C (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.
D 33. That a child alone is referred to under the other provisions of
the Act is further made clear by Section l 3(a), which reads as under:
"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
E 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 ofa child."
Obviously, the sexual organs of a child cannot ever be the sexual
F 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. -
G
(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
H reposes trust or confidence."
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 1017
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

35. Section 39 again throws some light on this knotty problem. A
The said Section reads as under :
"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 B
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 c
to the physical and mental age of a child and not an adult.
36.Areading 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 D
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. In short, the
difference is the well-k11own philosophical difference between "is" and
"ought". Does the Judge put himself in the place of the legislator and E
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 F
would go beyond creative interpretation oflegislation 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 inpari materia would bring this
into sharper focus. The Medical Termination of Pregnancy Act, 1971, G
again brings into sharp focus the distinction between "mentally ill persons"
and "minors". Sections 2(b), (c) of the said Act are as follows:-
"2. Definitions.-In this Act, unless the context otherwise
requires,-
H
1018 SUPREME COURT REPORTS [2017) 7 S.C.R.

A (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 ofl 875), is to be deemed not to have attained
B his majority."
38. Section 3(4)(a) of the 1971 Act reads as under:
"3. When pregnancies may be terminated by registered
medical practitioners. -
c (!) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) (a) No pregnancy ofa woman, who has not attained the age
D of eighteen years, or, who, having attained the age of eighteen
years, is a mentally ill person, shall be te1minated 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
E distinction between a woman who is a minor and an adult woman who is
mentally ill is again brought into sharp focus by the statut<; 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
G 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;
H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 1019
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

2(t) "minor" means a person who has not completed the age of A
eighteen years;
14 (1) Notwithstanding anything contained in clause (c) of sub-
section (1) of section 5, every person who is not a minor, shall
have a right to appoint a nominated representative.
(2) The nomination under sub·5•n ( 1) shall be made in writing B
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
c
and perform the functions assigned to him under this Act.
(4) Where no nominated representative is appointed by a person
under sub-section ( l ), 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:- D
(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 E
(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
( e) if no such person is available to be appointed as a nominated F
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 G
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.
H
1020 SUPREME COURT REPORTS [2017] 7 S.C.R.

A (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
B
nominated representa.tt~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
c sub-section (I).
(7) The Board may, ifit 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.
D
(8) The appointment ofa 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.
E
(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. (I) Notwithstanding anything contained in section 14, in case
F
ofminors, 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
G
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
rumor; or

H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 1021
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

(b) the legal guardian is otherwise not fit to act as the nominated A
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 B
in the Department of Social Welfare of the State in which such
Berard 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 c
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). D
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 - E
(a) to (r) xxx xxx xxx
( s) "person with disability" means a person with long tenn physical,
mental, intellectual or sensory impairment which, in interaction
with barriers, hinders his full and effective participation in society
F
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.
G
(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."
H
1022 SUPREME COURT REPORTS [2017] 7 S.C.R.

A "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.
(2) Where the parents are unable to take care of a child with
B 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 min-governmental organisation, as may
be required."

c "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
D 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.

E (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
F
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.
G
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

H
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 1023
(GOVT. OF NCT OF DELHI) [R. F. NARIMAN, J.]

broader sense, is a "person with disability" under the Act, who gets A
protection. The Statement of Objects and Reasons of the said Act reads
asunder:
"STATEMENT OF OBJECTS AND REASONS
The Government of India has become increasingly
concerned about the need for affirmative action in favour of B
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 seeks to set up a
National Trust to be known as a National Trust for Welfare of C
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 D
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 E
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 F
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 G
17(1), and the same are reproduced as under:
"2. Definitions. - In this Act, unless tl:ie context otherwise
requires -
(a) to (t) xxx xxx xxx
H
1024 SUPREME COURT REPORTS [2017] 7 S.C.R.

A (g) "mental retardation" means a condition of. arre~ted or
"incomplete development of mind of a person which is spei;ially
characterised by sub-noml!llity of intelligence;
(h) & (i) xxx xxx xxx
U) "persons with disability'' means a person suffering from any of
B the conditions relating to autism, cerebral,palsy, mental retardation
or a combination ofany two or more of such conditions and includes
a person suffering from severe multiple disability."
"''14.Appointment for guardianship.-(l)Aparent of a person
with disability or his relative may make an application to the local
c level committee for appointment of any person of his choice to
act as a guardian of the persons with disability."
"t 7. Removal of guardian.-(!) Whenever a parent or a relative
of a person with disability or a registered organisation finds that
the guardian is-
D (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."
E A reading of the Ooj~cts 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.
F
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(l)(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 Pariiament intended and no further. I am in
G
agreement, therefore, with the judgment of my learned brother, including
the directions given by him.

Dcvika Gujral Appeals disposed of.