Holding

The Court held that it cannot prescribe chemical castration or any new punishment, but may only recommend that Parliament define “child” (potentially up to age 10 for girl children) and enact more severe penalties for child rapists.

Summary

The Supreme Court Women Lawyers Association filed a writ petition under Article 32 seeking that the legislature impose chemical castration as an additional punishment for perpetrators of rape against girl children. The petition highlighted alarming incidents of child sexual abuse and argued that the Indian Penal Code does not define the term “child” for the offence of rape. The Court held that it cannot create new offences or prescribe specific punishments, a function reserved for the legislature, but it may recommend that Parliament define “child” (suggesting an upper limit of ten years for girl children) and consider harsher penalties for such offenders. The Court referred to the existing provisions of Section 376 IPC and noted that the law already provides for severe punishment in certain aggravated cases. Consequently, the petition was dismissed, with the Court urging Parliament to act on the suggested reforms.

Issues considered

Can the Supreme Court, exercising its power under Article 32, direct the imposition of chemical castration as an additional punishment for child rapists?
Does the Indian Penal Code define the term “child” in the context of rape, and should it be defined?
Is it within the Court’s jurisdiction to prescribe new punishments, or must such matters be left to the Legislature?
Can the Court issue guidelines in lieu of legislation for the trial and protection of child sexual abuse victims?

Legislation cited

Code of Criminal Procedure, 1973s. 327(2)
Constitution of Indias. 32
Indian Penal Code, 1860s. 376, s. 376(2)

Subjects

chemical castrationchild rapegirl childIPC Section 376definition of childlegislative recommendationArticle 32writ petitionsexual assaultpunishment

Judgment

[2016] I S.C.R. 207

SUPREME COURT WOMEN LAWYERS ASSOCIATION A
(SCWLA)
v.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No.4 of 2016) B
JANUARY 11, 2016
[DIPAK MISRA AND N. V. RAMANA, JJ.]
Constitution of India, 1950 - Art. 32 - Remedies for
enforcement of rights conferred by this Pan - Rape and abuse of a
girl child - Writ petition to consider imposition of chemical castration
c
as an additional punishment for such child abusers - Held: A child,
a glorious gift to mankind, cannot conceive of any kind of carnal
desire in man - Once she becomes a victim of such a crime, there is
disastrous effect on her mind - Mental agony lasts long, sorrow
and fear haunt forever - Therefore, there is need to take steps for D
stopping this kind of child abuse - This Court cannot provide a
higher punishment - It can only suggest to the Legislature - /PC
provides punishment for the offence of rape but has not defined the
term 'child' - There is a need for defining the term 'child' in the
context of rape and thereafter, provide for more severe punishment
E
in respect of the culprits who are involved in this type of crime -
Distinction can be drawn between the girl children and the minor,
may be by fixing the upper limit at 10 for the girl children -
Suggestion made that Parliament would "respond to the agony of
the collective, for it really deserves consideration - Penal Code,
1870 - s. 376. F
Vishaka & Ors. v. State of Rajasthan & Ors. 1997 (3)
Suppl. SCR 404 : (1997) 6 SCC 241; Sakshi v. Union
of India & Ors. 2004 (2) Suppl. SCR 723 : (2004) 5
SCC 518; Mano} Narula v. Union of India (2014) 9
SCC 1; S. Gopal Reddy v. State of A.P. 1996 (3) Suppl. G
SCR 439 : (1996) 4 SCC 596 - referred to.
Case Law Reference
1997 (3) Suppl. SCR 404 Referred to. Para 3,5,7.
2004 (2) Suppl. SCR 723 Referred to. Para 3,8,16. H
207 r
208 SUPREME COURT REPORTS (2016] l S.C.R.

A (2014) 9 sec 1 Referred to. Para 6.
1996 (3) Suppl. SCR 439 Referred to. Paras
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
4of2016
B Under Article 32 of the Consitution of India.
Mahalakshmi Pavani, Shiva Vijaya Kumar, Anita Bafna, Prema
Kumari for the Appellant.
Mukul Rohtagi, AG for the Respondents.
The Order of the Court was delivered by
c
DIPAK MISRA, J. l. The petitioner, Supreme Court Women
Lawyers Association (SCWLA), being immensely sensitively ignited by
the atrocious, inconceivable and brutal sexual offence where certain
psychologically and possibly psychographically perverted culprits have
not even spared 28 days old baby girl and also in certain situations have
D
monstrously behaved with other small girls who come within two to ten
years of age as if they are totally trivial commodities, has invoked the
jurisdiction of this Court under Article 32 of the Constitution oflndia for
considering imposition of "chemical castration" as an additional
punishment for such child abusers.
E 2. In support of the cause projected, it is submitted by Ms.
Mahalakshmi Pavani, learned senior counsel along with Ms. Shiva Vijay
Kumar, Ms. Anita Bafna and Ms. Prema Kumari, learned counsel for
the petitioner that reading certain news items in the newspapers in the
morning has become quite a dreadful and lamentable experience for any
F sensitive person in this country and extremely agonizing and anguishing
for any woman as the concept of civility and conception of civilised
society seem to have veered on the path of destruction, and degradation
from the basic human values. She has drawn our attention to the news
items in the Times oflndia, New Delhi dated December 07, 2015, Times
City, dated December 8, 2015 and various TV reports which reflect that
G two to five year old girl children have been abused and raped. Sometimes,
as she would put with all vestige of distress at her command, the tender
angelic girls have been abducted, brutally ravished and murdered. It is
urged by her that she is absolutely conscious that this Court may not be
inclined to issue a mandamus to create a punishment in respect of an
H offence but indubitably this Court can give a suggestion so that the
SUPREME COURT WOMEN LAWYERS ASSOCIATION 209
(SCWLA) v. UNION OF INDIA [DIPAK MISRA, J.]

legislature can appositely respond to the collective cry. A
3. Learned senior counsel has drawn inspiration from the
decisions rendered in Vishaka & Ors. v. State of Rajasthan & Ors. 1
and Sakshi v. Union of India & Ors. 1 to stress the point that this
Court can always lay the guidelines in the said regard. Additionally,
learned counsel for the petitioner highlighting the fundamental value of B
human rights and dignity of the children submitted that when a child is
born, thought of the Creative Intelligence or Almighty comes into action.
It is canvassed by her that when a child sees the mother earth it is a
grace to the human race but unfortunately the life span of a girl child is
guillotined before it blossoms because of unimaginable carnal desire of
some. c
4. We have sought assistance of Mr. Mukul Rohatgi, learned
Attorney General for India. Responding to the submissions of he learned
senior counsel for the petitioner, it is very fairly put forth by Mr. Rohatgi
that a society which is civilized and replete with cultural values of thousand
years old and respects child and human rights, child abuse and the rape D
of a girl child can never be tolerated, and the culprits deserve to be dealt
with iron hands of law. However, Mr. Rohatgi would submit that this
Court should not suggest a particular or specific punishment to be
introduced as it is in the domain of wisdom of the Legislature. That
apart, canvassed Mr. Rohatgi, the punishment suggested by the Petitioner· E
Association is more out of passion rather than rational deliberation. In
essence, the submission is that punishment is provided under Section
376 of the Indian Penal Code (IPC) in respect of a woman who is minor
but there may be circumstances where more specific attention may be
necessitous for dealing with the rapist of a girl child.
F
5. At the very outset, we must make it clear that the courts
neither create offences nor do they introduce or legislate punishments.
It is the duty of the Legislature. The principle laid down in Vishaka 's
case is quite different, for in the said case, the Court relied on the
International Convention, namely, "Convention on the Elimination of All
Forms of Discrimination against Women", especially Articles pertaining G
to violence and equality in employment and further referred to the concept
of gender equality including protection from sexual harassment and right
to work with dignity and on that basis came to hold that in the absence of
1 (1997) 6 sec 241
2 (2004) s sec s1s H
210 SUPREME COURT REPORTS [2016] 1 S.C.R.

A enacted law to provide for effective enforcement of the basic human
right of gender equality and guarantee against the sexual harassment
and abuse, more particularly against sexual harassment at work places,
guidelines and norms can be laid down in exercise of the power under
Article 32 of the' Constitution, and such guidelines should be treated as
law declared under Article 141 of the Constitution. The following passage
B
from the said authority makes the position clear:-
" ... The international conventions and norms are to be read into
them in the absence of enacted domestic law occupying the field
when there is no inconsistency between them. It is now an
accepted rule of judicial construction that regard must be had to
c international conventions and norms for construing domestic law
when there is no inconsistency between them and there is a void
in the domestic law .... "
6. We have referred to the said passage as it is clear that the
Court has clearly taken note of the constitutional silence or constitutional
D abeyance and dealt with the constitutional obligation to protect the right
of women at the workplace. The Constitution Bench in Manoj Narula
v. Union of India', while dealing with the said principle, has observed:-
" ... The said principle is a progressive one and is applied as a
recognised advanced constitutional practice. It has been
E recognised by the Court to fill up the gaps in respect of certain
areas in the interest of justice and larger public interest.
Liberalisation of the concept of locus standi for the purpose of
development of public interest litigation to establish the rights of
the have-nots or to prevent damages and protect environment is
F one such feature. Similarly. laying down guidelines as procedural
safeguards in the matterof adoption of Indian children by foreigners
in L<umi Kant Pandey v. Union of India, (1987) I SCC 66, or
issuance of guidelines pertaining to arrest in D. K. Basu v. State
of WB., (1997) 1 SCC 416, or directions issued in Vishaka v.
State of Rajasthan (supra) are some of the instances."
G
7. In the case at hand, the Legislature has enacted the law and
provided the punishment and, therefore, we cannot take recourse to the
Vishaka principle. There is no constitutional silence or abeyance.
8. In Sakshi (supra), the Court was dealing with a Public Interest
H 3 c2014) 9 sec 1
SUPREME COURT WOMEN LAWYERS ASSOCIATION 211
(SCWLA) v. UNION OF INDIA [DIPAK MISRA, J.]

Litigation filed by the Petitioner-Association to provide legal, medical, A
residential, psychological or any other help, assistance or charitable
support for women, in particularly those who are victims of any kind of
sexual abuse and/or harassment, violence or any kind of atrocity or
violation. The Court took note of various statutory provisions and the
constitutional command, referred to the international conventions,
B
pronouncement in S. Gopal Reddy v. State of A.P. 4 and the report of
the Law Commission, and opined as follows:-
"The writ petition is accordingly disposed of with the following
directions:
(1) The provisions of sub-section (2) of Section 327 CrPC shall, c
in addition to the offences mentioned in the sub-section, also apply
in inquiry or trial of offences under Sections 354 and 377 IPC.
(2) In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements may be made where the
victim or witnesses (who may be equally vulnerable like the victim) D
do not see the body or face of the accused;
(ii) the questions put in cross-examination on behalf of the accused,
insofar as they relate directly to the incident, should be given in
writing to the presiding officer of the court who may put them to
the victim or witnesses in a language which is clear and is not E
embarrassing;
(iii) the victim of child abuse or rape, while giving testimony in
court, should be allowed sufficient breaks as and when required.
These directions are in addition to those given in State of Punjab
F
v. Gurmit Singh, (1996) 2 SCC 384."
9. We shall refer the said authority at a later stage, but suffice to
say here that the Court neither proceeded to legislate nor did it provide
for a punishment.
10. In the case at hand, we are concerned with the rape committed G
on a girl child. As has been urged before us that such crimes are rampant
for unfathomable reasons and it is the obligation of the law and law
makers to cultivate respect for the children and especially the girl children
who are treated with such barbarity and savageness as indicated earlier.

4 (!996) 4 sec 596 H
212 SUPREME COURT REPORTS [2016] 1 S.C.R.

A The learned senior counsel appearing for the petitioner has emphasized
on the obtaining horrendous and repulsive situation.
11. In this context, we may usefully refer to Section 376 IPC, as
amended with effect from February 3, 2013 which reads as follows:-
"376.Punishment for sexual assault-(l)(a) whoever, except
B in the cases provided for by sub-section (2) commits sexual assault
shall be punished with imprisonment of either description for a
term which shall not be less than seven years but which may
extend to I 0 years and shall also be liable to fine. (b) If the
sexual assault is committed by a person in a position of trust or
c authority towards the complainant or by a near relative of the
complainant, he/she shall be punished with rigorous imprisonment
for a term which shall not be less than ten years but which may
extend to life imprisonment and shall also be liable to fine.
(2) Whoever,-
D ( a) Being a police officer commits rape-
(i) Within the limits of the police station to which he is appointed;
or
(ii) In the premises of any station house; or
E (iii) On a woman or minor in his custody or in the custody of a
police officer subordinate to such officer; or
(b) Being a public servant, commits rape on a woman in such
public servant's custody or in the custody of a public servant
subordinate to such public servant;· or
F (c) being a member of the armed forces deployed in area by the
Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand
home or other place of custody established by or under any law
for the time being in force or of a women's or children's institution,
G commits rape on any inmate of such jail, remand home, place of
institution; or
(e) being on the management or on the staff of a hospital, commits
rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position
H
SUPREME COURT WOMEN LAWYERS ASSOCIATION 213
(SCWLA) v. UNION OF INDIA [DIPAK MISRA, J.]

of trust or authority towards the woman, commits rape on such A
woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under sixteen years of B
age; or
Gl commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman,
commits rape on such woman; or
(1) commits rape on a woman suffering from mental or physical
c
disability; or
(m) while committing rape causes grievous bodily harm or maims
or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman, D
shall be punished with rigorous imprisonment for a term which
shall not be less than ten years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of that person's natural life, and shall also be liable to
~ E
Explanation.-For the purposes of this sub-section.-
( a) 'armed forces' means the naval, military and airforces and
includes any member of the Armed Forces constituted under any
law for the time being in force, including the paramilitary forces
and any auxiliary forces that are under the control of the Central F
Government or the State Government;
(b) 'hospital' means the precincts of the hospital and includes the
precincts of any institution for the reception and treatment of
persons during convalescence or of persons requiring medical
attention or rehabilitation; G
(c) 'police officer' shall have the same meaning as assigned to
the expression 'police; under the Police Act, 1861(5of1861);
(d) 'women's or children's institution' means an institution, whether
called an orphanage or a home for neglected women or children
H
214 SUPREME COURT REPORTS [2016] 1 S.C.R.

A or a widow's home or an institution called by any other name,
which is established and maintained for the inception and care of
women or children."
12. It is submitted by Ms. Pavani, learned senior counsel that
Section 376(2)(i) deals with a culprit who commits rape on a woman
B who is under 16 years of age but the instances are numerous where the
girl children and babies are raped. Highlighting further, it is proponed by
her that when the society faces perversion where the child abuse like
rape is rampant, there is a warrant for specific provision for imposing
higher and severe punishment on such culprits as there is a provision
under Section 376B which deals with sexual intercourse by husband
c upon his wife during separation or Section 376C, sexual intercourse by a
person in authority or Section 376E, punishment for repeated offender.
13. It is urged by Ms. Pavani, learned senior counsel that the
term "child" requires to be defined, regard being had to the situation
obtaining in the present day society. Learned counsel would suggest
D
that a woman below 16 years is definitely a minor but a child, though a
minor, may stand in a different category. The pain and suffering of a
child is a brutal assault on her physical frame, when she is raped. She
has no idea about sex or rape. It is a nightmare. Therefore, concern
expressed by the Petitioner-Association is justified. It is not a Utopian
E thought or "floating fancy" of unwarranted assumption. It is the
demonstration of reality in concrete terms. When a society moves in
this way, there has to be instillation of fear of law and the punishment
has to be definitive in a different way. In such a situation the classical
understanding of crime by Marcus Aurelius, the Roman Emperor of 2"'
Century A.D., who had said that poverty is the mother of crime may not
F hold good, for the crimes committed on girl children has no nexus with
the economic status of the perpetrator of crime; on the contrary, may
have nexus with neurotic behavior. In fact, this is a crime which is a
shameless demonstration and total insensitive exposition of attitude to a
victim. It is a gross violation of the social values and a failure of an
G in di vi dual. It is an act of extreme depravity. Therefore, the situation
that has emerged compels one to rethink.
14. We must appreciate the stand taken by Mr. Rohatgi, learned
Attorney General for India, who has keenly expressed his concern relating
to the child abuse. It can never be forgotten that it is duty of the society
H to make a child happy. In this regard, it is apt to quote a few lines from
SUPREME COURT WOMEN LAWYERS ASSOCIATION 215
(SCWLA) v. UNION OF INDIA [DIPAK MISRA, J.]

Buxton:- A
"The first duty to children is to make them happy. -If you have
not made them so, you have wronged them, -No other good they
may get can make up for that."
15. This Court cannot provide a higher punishment. It can only
suggest to the Legislature. We are absolutely conscious that IPC provides B
punishment for the offence of rape . There can be no doubt that a girl
child is a minor but may be a time has come where a distinction can be
drawn between the girl children and the minor, may be by fixing the
upper limit at 10 for the girl children. We are disposed to think so as by
that age, a child, a glorious gift to mankind, cannot conceive of any kind c
of carnal desire in man. Once she becomes a victim of such a crime,
there is disastrous effect on her mind. The mental agony lasts long.
Sorrow and fear haunt forever. There is need to take steps for stopping
this kind of child abuse and hence, possibly there is a need for defining
the term "child" in the context of rape and thereafter provide for more
severe punishment in respect of the culprits who are involved in this D
tyj,e of crime. In the light of the said decision, we part with the suggestion
with the fond hope that Parliament would respond to the agony of the
colllective, for it really deserves consideration. We say no more on this
sc<'.ire.
, 16. We have earlier stated that we shall refer to the authority in E
Sakshi (supra). In the said case, after issuing the directions, the Court
has· observed thus:-
"The suggestions made by the petitioners will advance the cause
of justice and are in the larger interest of society. The cases of
child abuse and rape are increasing at an alarming speed and F
appropriate legislation in this regard is, therefore, urgently required.
We hope and trust that Parliament will give serious attention to
the points highlighted by the petitioner and make appropriate
legislation with all the promptness which it deserves."
17. The writ petition is accordingly disposed of. G
Nidhi Jain Writ Petition disposed of.