Supreme Court women lawyers Association filed a petition in the Supreme Court urging the court to consider imposition of ‘Chemical Castration’ of the people who rape child girls.

Submissions of the Counsels

The counsel in support of their petition submitted 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.

Counsel drawn the attention of the court to the news items in the Times of India, New Delhi dated December 07, 2015, Times City, dated December 8, 2015 and various TV reports which reflected 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 was urged by her that she was absolutely conscious that the Court may not be inclined to issue a mandamus to create a punishment in respect of an offence but indubitably the Court can give a suggestion so that the legislature can appositely respond to the collective cry.

Counsel drawn inspiration from the decisions rendered in Vishaka & Ors. v. State of Rajasthan & Ors. (1997) and Sakshi v. Union of India & Ors. (2004) to stress the point that the Court can always lay the guidelines in the said regard.

Additionally, learned counsel for the petitioner highlighting the fundamental value of 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 was 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.

Attorney General of India, Mukul Rohatgi submitted 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 submitted that the 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 was 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.

Analysis by the Court

While considering the issue, the court made it clear that the courts neither create offences nor do they introduce or legislate punishments. It is the duty of the Legislature. The court said that 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 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 court further said,

‘In the case at hand, the Legislature has enacted the law and provided the punishment and, therefore, we take recourse to the Vishaka principle. There is no constitutional silence or abeyance.’

While referring already existed section 376 of IPC, the court mentioned the submission of counsel in support of the petition, 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 was 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.

It was further said by her that the term “child” requires to be defined, regard being had to the situation obtaining in the present day society. Learned counsel suggested 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.

After referring the submissions made by the counsels, the court said that,

“..the concern of 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 2nd 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 individual. It is an act of extreme depravity. Therefore, the situation that has emerged compels one to rethink. 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 Buxton:-

“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 type 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 collective, for it really deserves consideration. We say no more on this score.”

Reference

Supreme Court Lawyers Association v. Union of India (2016)