SUPREME COURT WOMEN LAWYERS ASSOCIATION versus UNION OF INDIA & ANR.
[2016] 1 S.C.R. 207, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Ratio
[2016] I S.C.R. 207 
SUPREME COURT WOMEN LAWYERS ASSOCIATION 
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(SCWLA) 
v. 
UNION OF INDIA & ANR. 
(Writ Petition (Civil) No.4 of 2016) 
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 
as an additional punishment for such child abusers - Held: A child, 
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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 
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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 
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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. 
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 
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SCC 1; S. Go pal Reddy v. State of A.P. 1996 (3) Suppl. 
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SCR 439 : (1996) 4 SCC 596 - referred to. 
Case Law Reference 
1997 (3) Suppl. SCR 404 
2004 (2) Suppl. SCR 723 
Referred to. 
Referred to. 
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Para 3,5,7. 
Para 3,8,16. 
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(2014) 9 sec 1 
Referred to. 
Referred to. 
Para 6. 
Paras 
1996 (3) Suppl. SCR 439 
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 
4of2016 
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Under Article 32 of the Consitution of India. 
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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 
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 
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. 
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 
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 
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 
offence but indubitably this Court can give a suggestion so that the
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(SCWLA) v. UNION OF INDIA [DIPAK MISRA, J.] 
legislature can appositely respond to the collective cry. 
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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. 
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 
of a girl child can never be tolerated, and the culprits deserve to be dealt 
with iron hands of law. 
However, Mr. Rohatgi would submit that this 
Court should not suggest a particular or specific punishment to be 
introduced as it is in the domain of wisdom of
the Legislature. That 
apart, canvassed Mr. Rohatgi, the punishment suggested by the Petitioner· 
Association is more out of passion rather than rational deliberation. In 
essence, the submission is that punishment is provided under Section 
376 of the Indian Penal Code (IPC) in respect of a woman who is minor 
but there may be circumstances where more specific attention may be 
necessitous for dealing with the rapist of a girl child. 
5. At the very outset, we must make it clear that the courts 
neither create offences nor do they introduce or legislate punishments. 
It is the duty of the Legislature. The principle laid down in Vishaka 's 
case is quite different, for in the said case, the Court relied on the 
International Convention, namely, "Convention on the Elimination of All 
Forms of Discrimination against Women", especially Articles pertaining 
to violence and equality in employment and further referred to the concept 
of gender equality including protection from sexual harassment and right 
to work with dignity and on that basis came to hold that in the absence of 
1 (1997) 6 sec 241 
2 (2004) s sec s1s 
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enacted law to provide for effective enforcement of the basic human 
right of gender equality and guarantee against the sexual harassment 
and abuse, more particularly against sexual harassment at work places, 
guidelines and norms can be laid down in exercise of the power under 
Article 32 of the' Constitution, and such guidelines should be treated as 
law declared under Article 141 of the Constitution. The following passage 
from the said authority makes the position clear:-
" ... The international conventions and norms are to be read into 
them in the absence of enacted domestic law occupying the field 
when there is no inconsistency between them. It is now an 
accepted rule of judicial construction that regard must be had to 
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 
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 
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 
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." 
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 
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(SCWLA) v. UNION OF INDIA [DIPAK MISRA, J.] 
Litigation filed by the Petitioner-Association to provide legal, medical, 
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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, 
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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) 
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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 
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embarrassing; 
(iii) the victim of child abuse or rape, while giving
testimony in 
court, should be allowed sufficient breaks as and when required. 
These directions are in addition to those given in State of Punjab 
v. Gurmit Singh, (1996) 2 SCC 384." 
9. We shall refer the said authority at a later stage, but suffice to 
say here that the Court neither proceeded to legislate nor did it provide 
for a punishment. 
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10. In the case at hand, we are concerned with the rape committed 
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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 
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The learned senior counsel appearing for the petitioner has emphasized 
on the obtaining horrendous and repulsive situation. 
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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 
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 
authority towards the complainant or by a near relative of the 
complainant, he/she shall be punished with rigorous imprisonment 
for a term which shall not be less than ten years but which may 
extend to life imprisonment and shall also be liable to fine. 
(2) Whoever,-
( a) Being a police officer commits rape-
(i) Within the limits of the police station to which he is appointed; 
or 
(ii) In the premises of any station house; or 
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(iii) On a woman or minor in his custody or in the custody of a 
police officer subordinate to such officer; or 
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(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 
( c) being a member of the armed forces deployed in area by the
Central or a State Government commits rape in such area; or 
( d) being on the management or on the staff of a jail, remand 
home or other place of custody established by or under any law 
for the time being in force or of a women's or children's institution, 
commits rape on any inmate of such jail, remand home, place of 
institution; or 
( e) being on the management or on the staff of a hospital, commits 
rape on a woman in that hospital; or 
(f) being a relative, guardian or teacher of, or a person in a position
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of trust or authority towards the woman, commits rape on such 
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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 
disability; or 
(m) while committing rape causes grievous bodily harm or maims 
or disfigures or endangers the life of a woman; or 
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(n) commits rape repeatedly on the same woman, 
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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 
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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 
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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; 
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(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 
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[2016] 1 S.C.R. 
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 
who is under 16 years of age but the instances are numerous where the 
girl children and babies are raped. Highlighting further, it is proponed by 
her that when the society faces perversion where the child abuse like 
rape is rampant, there is a warrant for specific provision for imposing 
higher and severe punishment on such culprits as there is a provision 
under Section 376B which deals with sexual intercourse by husband 
upon his wife during separation or Section 376C, sexual intercourse by a 
person in authority or Section 376E, punishment for repeated offender. 
13. It is urged by Ms. Pavani, learned senior counsel that the 
term "child" requires to be defined, regard being had to the situation 
obtaining in the present day society. Learned counsel would suggest 
that a woman below 16 years is definitely a minor but a child, though a 
minor, may stand in a different category. The pain and suffering of a 
child is a brutal assault on her physical frame, when she is raped. She 
has no idea about sex or rape. It is a nightmare. Therefore, concern 
expressed by the Petitioner-Association is justified. It is not a Utopian
thought or "floating fancy" of unwarranted assumption. It is the 
demonstration of reality in concrete terms. When a society moves in 
this way, there has to be instillation of fear of law and the punishment 
has to be definitive in a different way. In such a situation the classical 
understanding of crime by Marcus Aurelius, the Roman Emperor of 2"' 
Century A.D., who had said that poverty is the mother of crime may not 
hold good, for the crimes committed on girl children has no nexus with 
the economic status of the perpetrator of crime; on the contrary, may 
have nexus with neurotic behavior. In fact, this is a crime which is a 
shameless demonstration and total insensitive exposition of attitude to a 
victim. It is a gross violation of the social values and a failure of an 
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 
to make a child happy. In this regard, it is apt to quote a few lines from
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Buxton:-
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"The first duty to children is to make them happy. -If you have 
not made them so, you have wronged them, -No other good they 
may get can make up for that." 
15. This Court cannot provide a higher punishment. It can only 
suggest to the Legislature. We are absolutely conscious that IPC provides 
punishment for the offence of rape . There can be no doubt that a girl 
child is a minor but may be a time has come where a distinction can be 
drawn between the girl children and the minor, may be by fixing the 
upper limit at 10 for the girl children. We are disposed to think so as by 
that age, a child, a glorious gift to mankind, cannot conceive of any kind 
of carnal desire in man. Once she becomes a victim of such a crime, 
there is disastrous effect on her mind. The mental agony lasts long. 
Sorrow and fear haunt forever. There is need to take steps for stopping 
this kind of child abuse and hence, possibly there is a need for defining 
the term "child" in the context of rape and thereafter provide for more 
severe punishment in respect of the culprits who are involved in this 
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. 
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16. We have earlier stated that we shall refer to the authority
in 
Sakshi (supra). In the said case, after issuing the directions, the Court 
has· observed thus:-
"The suggestions made by the petitioners will 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 
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. 
Nidhi Jain 
Writ Petition disposed of. 
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