Assignment on……

Recent Judgments Pronounced by the Supreme court On Literal Rule

of Interpretation

Submitted To Submitted By

Dr. Rakesh Meena Name – Kumari Diksha

Roll no- 210605

Sub- Interpretation of Statutes

Class- LL.M

Course – Department of Law

Session- 2021-2022

Semester- 1st

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 INTRODUTION

 WHAT IS INTERPRETATION - Laws are often enacted by legal experts under the
guidance of experts of different fields and hence, the wordings or phrases used in
these laws might cause confusion or result in ambiguity. Interpretation literally means
to explain or to understand. The basic purpose of interpretation is to help understand
the various statutes and provisions of law.

 LITERAL RULE OF INTERPRETATION- In order to interpret statutes, the

courts use various principles which help them understand the principles. One of the
principles is called the “Literal Rule of Interpretation”

The literal rule of interpretation has been termed as the primary rule of interpretation. As the
name suggests, the literal rule of interpretation means that the judge literally interprets the
statute. It can also be called the plain-meaning rule or the grammatical rule.

Statutes are constructed using the ordinary meaning of language given to the term and the
judges are not required to interpret the terms in any other way.

In the literal rule of interpretation, the courts are required to observe the ordinary and natural
meaning of words, interpret the phrase or words as it is. Judges are not required to add words
or modify meaning and they must observe the actual intent of the legislature. It is the safest
rule of interpretation.

CASES…

1. Commissioner of Customs (Import) Mumbai Vs. M/s Dilip Kumar and Company
and Ors 

Hon’ble Supreme Court of India (“SC”)- Constitution Bench of Five Judges in the case
of Commissioner of Customs (Import) Mumbai Vs. M/s Dilip Kumar and Company
and Ors have held that the benefit of ambiguity in exemption notification cannot be
claimed by the subject/assessee and it must be interpreted in favor of the revenue/state.
Exemption notifications are subject to strict interpretation.

Question for consideration:

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What is the interpretative rule to be applied while interpreting a tax exemption
provision/notification when there is an ambiguity as to its applicability with reference to the
‘entitlement’ of the assessee or the ‘rate of tax’ to be applied?

There was an earlier judgment on the same question as follows:

In Sun Export Corporation, Bombay Vs. The collector of Customs, Bombay, (1997) 6 SCC
564 (“Sun Export case”), a three-Judge Bench ruled that an ambiguity in a tax exemption
provision or notification must be interpreted so as to favor the assessee claiming the benefit
of such exemption.

Sun Export Case (supra) was a case against the judgment of the High Court of Judicature,
Bombay. It was concerned with the interpretation of tax exemption notification, being
Notification No. 234/1982-CE, dated 01.11.1982, issued by the Central Government under
subsection (1) of Section 25 of the Customs Act. The High Court considered the issue of
whether Vitamin AD-3 mix (feed grade)/animal feed supplement could be included under the
head ‘animal feed, including compound livestock feed’. The Bombay High Court decided, in
the affirmative, in favour of the assesse. The case then landed in this Court, which was
persuaded to expand the meaning of ‘animal feed’ in the light of subsequent notification
issued in 1984, which largely expanded the scope of the exemption to the effect that ‘animal
feed, including compound livestock feed, animal feed supplements, and animal feed
concentrates’. This Court indeed countenanced the plea, namely, whenever there is ambiguity
as to whether the subject matter was included or not, then the benefit of the same should be
conferred on the assesse.

The relevant portion in Sun Export Case (supra), reads as follows:

“We are in agreement with the above view expressed by the Bombay High Court. …. Even
assuming that there are two views possible, it is well settled that one favourable to
the assesse in matters of taxation has to be preferred.”
After referring to the above judgment, SC dealt with the present case as follows:
Facts of the present case:

The respondents (M/s Dilip Kumar and Company and Ors) imported a consignment of
Vitamin-E50 powder (feed grade) in 1999. They claimed the benefit of concessional rate of
duty at 5%, instead of standard 30%, as per the Customs Notification No. 20/1999 and

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classified the product under Chapter 2309.90 which admittedly pertains to prawn feed. They
relied on the ratio in Sun Export Case (supra) and claimed the benefit of the exemption. The
benefit of Customs Notification No. 20/1999 was, however, denied to the respondents on the
plea of the department that the goods under import contained chemical ingredients for animal
feed and not animal feed/prawn feed, as such, the concessional rate of duty under the extant
notification was not available.

The department classified the consignment under Chapter 29 which attracts the standard rate
of customs duty. The adjudicating authority, namely, the Assistant Commissioner of
Customs, distinguished Sun Export Case (supra), while accepting the plea of the department
to deny the concessional rate. The Commissioner of Customs (Appeals) reversed the order of
the Assistant Commissioner and came to the conclusion that Sun Export Case (supra) was
indeed applicable. The department then approached the Customs, Excise and Service Tax
Tribunal (CESTAT), which affirmed the order of the Commissioner of Customs (Appeals).
Aggrieved thereby, the present appeal is filed.

General principles of interpretation (including of taxation law) were observed as follows:

It is well-settled principle that when the words in a statute are clear, plain and unambiguous
and only one meaning can be inferred, the Courts are bound to give effect to the said meaning
irrespective of consequences. If the words in the statute are plain and unambiguous, it
becomes necessary to expound those words in their natural and ordinary sense. The words
used declare the intention of the Legislature. In Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR
1957 SC 907, it was held that if the words used are capable of one construction only then it
would not be open to the Courts to adopt any other hypothetical construction on the ground
that such construction is more consistent with the alleged object and policy of the Act.

In applying the rule of plain meaning any hardship and inconvenience cannot be the basis to
alter the meaning to the language employed by the legislation. This is especially so in fiscal
statutes and penal statutes. Nevertheless, if the plain language results in absurdity, the Court
is entitled to determine the meaning of the word in the context in which it is used keeping in
view the legislative purpose. Not only that, if the plain construction leads to anomaly and
absurdity, the court having regard to the hardship and consequences that flow from such a
provision can even explain the true intention of the legislation. Having observed general
principles applicable to statutory interpretation, it is now time to consider rules of
interpretation with respect to taxation.
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In construing penal statutes and taxation statutes, the Court has to apply the strict rule of
interpretation. The penal statute which tends to deprive a person of right to life and liberty
has to be given the strict interpretation or else many innocents might become victims of
discretionary decision making. Insofar as taxation statutes are concerned, Article 265 of the
Constitution prohibits the State from extracting tax from the citizens without authority of law.
It is axiomatic that taxation statute has to be interpreted strictly because State cannot at their
whims and fancies burden the citizens without authority of law. In other words, when
competent Legislature mandates taxing certain persons/certain objects in certain
circumstances, it cannot be expanded/interpreted to include those, which were not intended
by the Legislature.

It is to be noted that the principle of ‘literal interpretation’ and the principle of ‘strict
interpretation’ are sometimes used interchangeably. This principle, however, may not be
sustainable in all contexts and situations. There is certainly scope to sustain an argument that
all cases of literal interpretation would involve the strict rule of interpretation, but strict rule
may not necessarily involve the former, especially in the area of taxation. The decision of this
Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v.
Presiding Officer, Labour Court Chandigarh and Ors., (1990) 3 SCC 682, made the said
distinction, and explained the literal rule-
“The literal rules of construction require the wording of the Act to be construed according to
its literal and grammatical meaning whatever the result may be. Unless otherwise provided,
the same
word must normally be construed throughout the Act in the same sense, and in the case of old
statutes regard must be had to its contemporary meaning if there has been no change with the
passage of time.” Strict interpretation does not encompass strict-literalism into its fold. It
may be relevant to note that simply juxtaposing ‘strict interpretation’ with ‘literal rule’ would
result in ignoring an important aspect that is ‘apparent legislative intent’. We are alive to the
fact that there may be overlapping in some cases between the aforesaid two rules. With
certainty, we can observe that ‘strict interpretation’ does not encompass such literalism,
which leads to absurdity and go against the legislative intent. As noted above, if literalism is
at the far end of the spectrum, wherein it accepts no implications or inferences, then ‘strict
interpretation’ can be implied to accept some form of essential inferences which literal rule
may not accept.

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Justice G.P. Singh, in his treatise ‘Principles of Statutory Interpretation’ after referring to
various SC Judgments stated “…..In all tax matters, one has to interpret the taxation statute
strictly…”.

It is well settled that in a taxation statute, there is no room for any intendment; that regard
must be had to the clear meaning of the words and that the matter should be governed wholly
by the language of the notification. Equity has no place in the interpretation of a tax statute.
Strictly one has to look to the language used; there is no room for searching intendment nor
drawing any presumption. Furthermore, nothing has to be read into nor should anything be
implied other than essential inferences while considering a taxation statute.

In the case of State of West Bengal vs. Kesoram Industries Limited, (2004) 10 SCC
201, seven judges bench of SC after citing the passages from Justice G.P. Singh’s treatise,
summed up the following principles applicable to the interpretation of a taxing statute: “(i) In
interpreting a taxing statute, equitable considerations are entirely out of place. A taxing
statute cannot be interpreted on any presumption or assumption. A taxing statute has to be
interpreted in the light of what is clearly expressed; it cannot imply anything which is not
expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii)
Before taxing any person, it must be shown that he falls within the ambit of the charging
section by clear words used in the section; and (iii) If the words are ambiguous and open to
two interpretations, the benefit of interpretation is given to the subject and there is nothing
unjust in a taxpayer escaping if the letter of the law fails to catch him on account of
Legislature’s failure to express itself clearly”.
Now in respect of core issue, it was observed:
In the judgment of two learned Judges in Union of India v. Wood Papers Limited, (1990) 4
SCC 256, a distinction between stage of finding out the eligibility to seek exemption and
stage of applying the nature of exemption was made. Relying on the decision in Collector of
Central Excise vs. Parle Exports (P) Ltd., (1989) 1 SCC 345, it was held “Do not extend or
widen the ambit at the stage of applicability. But once that hurdle is crossed, construe it
liberally”. The reasoning for arriving at such conclusion is found in para 4 of Wood Papers
Ltd. Case (supra), which reads-
“… Literally, exemption is freedom from liability, tax or duty. Fiscally, it may assume
varying shapes, especially, in a growing economy. For instance, tax holiday to new units,
concessional rate of tax to goods or persons for the limited period or with the specific

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objective etc. That is why its construction, unlike charging provision, has to be tested on the
different touchstone. In fact, an exemption provision is like an exception and on the normal
principle of construction or interpretation of statutes it is construed strictly either because of
legislative intention or on economic justification of inequitable burden or progressive
approach of fiscal provisions intended to augment State revenue. But once exception or
exemption becomes applicable no rule or principles requires it to be construed strictly. Truly
speaking liberal and strict construction of an exemption provision are to be invoked at
different stages of interpreting it. When the question is whether a subject falls in the
notification or in the exemption clause then it being in nature of exception is to be
construed strictly and against the subject, but once ambiguity or doubt about applicability
is lifted and the subject falls in the notification then full play should be given to it and it
calls for a wider and liberal construction…”
The Constitution Bench in the case of Commissioner of Central Excise, New Delhi v. Hari
Chand Shri Gopal, (2011) 1 SCC 236 followed the ratio of in Hansraj Gordhandas Case
(supra), to reiterate the law on the aspect of the interpretation of exemption clause in para 29
as follows:
“The law is well settled that a person who claims exemption or concession has to establish
that he is entitled to that exemption or concession. A provision providing for an exemption,
concession or exception, as the case may be, has to be construed strictly with certain
exceptions depending upon the settings on which the provision has been placed in the statute
and the object and purpose to be achieved. If the exemption is available on complying with
certain conditions, the conditions have to be complied with. The mandatory requirements
of those conditions must be obeyed or fulfilled exactly, thought at times, some latitude can
be shown, if there is the failure to comply with some requirements which are the directory
in nature, the non-compliance of which would not affect the essence or substance of the
notification granting the exemption.“
“…The critical question to be examined is whether the requirements relate to the
“substance” or “essence” of the statute if so, strict adherence to those requirements is a
precondition to give effect to that doctrine. On the other hand, if the requirements are
procedural or directory in that they are not of the “essence” of the thing to be done but are
given with a view to the orderly conduct of business, they may be fulfilled by substantial, if
not strict compliance. …”
Finally, it was held in the present case as under:

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The ratio in Sun Export case (supra) is not correct and all the decisions which took the similar
view as in Sun Export Case (supra) stand overruled.

Exemptions from taxation have the tendency to increase the burden on the other unexempted
class of taxpayers. A person claiming exemption, therefore, has to establish that his case
squarely falls within the exemption notification, and while doing so, a notification should be
construed against the subject in case of ambiguity.

Every taxing statue including, charging, computation and exemption clause (at the threshold
stage) should be interpreted strictly. Further, in case of ambiguity in a charging provision,
the benefit must necessarily go in favor of subject/assessee, but the same is not true for
an exemption notification wherein the benefit of ambiguity must be strictly interpreted
in favor of the Revenue/State.
Comments/Concluding Remarks:
Under GST law also, there are various exemption notifications issued. One such can
be notification no. 45- Central Tax (Rate) where the supplier can charge concessional rate
of 5% where specified goods are supplied to specified recipients such as research institutions,
public funded research institutions, IIT, medical centers, universities etc. on the basis
certificates furnished. Post this judgment it clearly signifies that if the goods do not fall
within the list of specified goods or list of specified recipients, benefit of concessional rate
can be denied to the supplier (even when the certificates are furnished) since responsibility to
determine whether said supply squarely falls within the purview of exemption notification is
cast on the supplier.
2. Sushil Kumar Agarwal vs Meenakshi Sadhu - Supreme Court Important
Judgment
By a judgment dated 9th October, 2018 in the matter of Sushil Kumar Agarwal vs. Meenakshi
Sandhu and Ors. [2018 (13) SCALE 778], the Hon'ble Supreme Court, relying on provisions
of Section 14 (3) (c) (prior to its amendment) of Specific Relief Act, 1963 ("Act"), settled
principles in relation to development agreements and enforcement thereof and held inter
alia that the said provisions do not prevent developers from seeking specific enforcement of
agreements granting them development rights against the owner of the property.

Facts
By and under a Development Agreement dated 14th April, 1992 ("Development
Agreement"), one Late Kalidas Sadhu (preceded by its successors-in-interest)

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("Respondents") granted development rights in favour of one Sushil Kumar Agarwal
("Appellant") for construction of a building on premises situated at Kolkata. In terms
thereof:

i. The costs and expenses for sanction of the plan for construction of the building was to
be borne by the Appellant;
ii. The plan of the building would be prepared and submitted by the Appellant;
iii. the Respondents were entitled to retain 42% of the total constructed area on 'sole
owned' basis leaving the balance 58% as security for due payment of the construction
costs;
iv. The Respondents were entitled to demand any loss and/or damages suffered by him
for any illegal activities of the Appellant and the Appellant was also, in addition to
claim specific performance, entitled to claim damages from the Respondent for lapse
and negligence.

Upon execution of the aforesaid Development Agreement, the Appellant alleged that he
found that the premises were encumbered and therefore requested the Respondents to make
payments, who assured the Appellant that he will reimburse him before obtaining the
sanctioned building plan. Accordingly, the Appellant claimed to have made payment of Rs.
7,03,000/-.

Thereafter, the Respondent addressed a letter to the Appellant and denied the execution of the
agreement, which was protested by the Respondent. The parties thereafter met and modified
the terms of the Development Agreement pursuant to which (i) allocation of the Respondent
would be 47% instead of 42% and (ii) allocation of the Appellant would be 53% instead of
58%.

Thereafter, when the Appellant issued a notice upon the Respondent calling him upon to
make some payments for his share of the sanctioned fees, in reply to which, the Respondent
denied the same on the ground that the Development Agreement has been cancelled.

Against this, the Appellant instituted a suit in the City Civil Court seeking a declaration that
the cancellation of the Development Agreement was invalid. Subsequently, the Appellant
also amended the plaint, by which a prayer for specific performance of the Development
Agreement was included. This suit being dismissed by the City Civil Court on the ground that

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there was no tangible evidence that the possession of the premises was handed over to the
Appellant, the Appellant preferred an appeal before the Hon'ble High Court of Calcutta. This
appeal was also dismissed by the Hon'ble High Court on the ground inter alia that the suit
was not maintainable in terms of Section 14 (3) (c) of the Act.

Issue
The limited issue raised before the Hon'ble Supreme Court was whether in terms of Section
14 (3) (c) of the Act, there is a bar to a suit by a developer for specific performance of a
development agreement and whether the word 'defendant' in Section 14 (3) (c) (iii) has the
effect of confining the scope of the suit for specific performance only to a particular class
(consisting of owners) or whether a purposive interpretation to the legislation would be
required, so as to provide a broader set of remedies to both owners and developers.

Section 14 (3) (c)

In order to understand the issue vis-à-vis, we may consider the requisites of the Section 14 (3)
(c) of the Act, namely, the court may enforce specific performance of a contract for
construction of a building or execution of any other work on land provided:

i. the building to be constructed or the work to be executed is described in such a

manner in the contract so as to enable the court to determine the exact nature of
works;
ii. the plaintiff has a substantial interest in the performance of the contract;
iii. the interest is of such a nature that compensation in money for non-performance of the
contract would not be adequate relief; and
iv. the defendant has, pursuant to the contract, obtained possession of whole or part of the
land where the building is to be constructed or work is to be executed.

Interpretation of Section 14 (3) (c)

The court noted judgments of various High Courts wherein they have interpreted the
provisions of Section 14 (3) (c) of the Act and circumstances under which a development
agreement may be specifically enforced and observed that in order to grant specific
performance of the development agreement, it is essential to determine inter alia whether the
developer, pursuant to the development agreement, has an interest in the land.

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In the matter at hand, the Appellant was permitted to carry out the construction of the
building and in consideration thereof, was to be paid an agreed remuneration by the
Respondent. It was also noted that the Appellant did not have any interest in the land. The
security interest so created was merely to secure payment of the remuneration. In the event
the remuneration was paid to the Appellant; no security would arise.

Whilst determining the scope of Section 14 (3) (c) of the Act, the court noted that in the event
the provision is given a literal interpretation, the same would never have been able to be
enforced by the developer. This is because the words used under Section 13 (3) (c) (iii)
is "the Defendant has, by virtue of the agreement, obtained possession of the whole or any
part of the land". In the event this section is invoked by the developer, thereby making him
the plaintiff in the suit, the defendant, being the owner of the land, will not satisfy this
requirement in light of the fact that he would also be in legal possession of the land and have
a lawful title thereto, even prior to the execution of the agreement, thereby falling short of the
requirement of "...by virtue of the agreement..." stipulated thereunder. This would essentially
fall short of the intent of the Act and the developer, notwithstanding having interest in an
immoveable property, will be deprived of its rights to enforce performance of a contract
whereby such interest is created.

Further, it was also observed that in the event the provision is given a purposive
interpretation, a developer who has an interest in the land, may seek specific enforcement of
contract pursuant to which the same was vested upon him. However, in such a case, the
provisions of Section 14 (3) (c) (iii) will have no role to play in enforcement thereof and the
court, whilst exercising its discretionary power, will have to satisfy itself whether provisions
of Section 14 (3) (c) (i) and Section 14 (3) (c) (ii) of the Act have been satisfied.

Held
In additions to finding that the Appellant has no interest in the land and the alleged losses /
damages caused to the Appellant can be quantified, the court also observed that another
essential requirement of Section 14 (3) (c) of the Act, namely, that the building to be
constructed or the work to be executed is described in such a manner in the contract so as to
enable the court to determine the exact nature of works, is not satisfied either. In view
thereof, it held that specific performance cannot be granted.

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Conclusion
With effect from 1st October, 2018, Section 14 of the Act stood amended to have the effect
of limiting it only to listing out of four categories of contracts which cannot be specifically
enforced. Whilst the Hon'ble Supreme Court has not examined the effect of the amended
provision in the matter, however, it will be interesting to see the holding of the purposive
interpretation given by the Hon'ble Supreme Court (to give effect to the intention of the Act)
in cases where development agreements are sought to be specifically enforced by developers
having interest in immoveable properties.

It appears that it is intended that in the event a development agreement is executed whereby
the developer is not only entitled to construct the building but also receive considerations /
cash flows therefrom and consequently, a power of attorney is executed in favour of the
developer in order to enable to inter alia obtain approvals, sell units and receive
consideration, the same becomes irrevocable in its essence in view of provisions of Section
202 of Indian Contract Act, 1872 and thereby, in its nature, even in the absence of provisions
of Section 14 (3) (c) of the Act, becomes a contract in respect of which an aggrieved
developer may claim specific performance therefor.

3. The Supreme Court in the matter of Canara Bank vs United Indian Insurance
Corporation and Ors.  on February 06, 2020 held that the beneficiaries of the policies
taken out by the insured are also ‘consumers’ under the Consumer Protection Act, even
though they are not parties to the contract of insurance.

Brief Facts of the case

 The claimants in the captioned appeal are farmers who had stored their produce in a
cold store, during the year 2012-2013.

Contention by the claimants (farmers, cold store)

1. The farmers contended that the cold store while levying general charges had also
charges for the insurance premium to be paid to the insurance company, therefore,
they were well within the ambit of filing the The cold store also pressed on the same
fact

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 2. The farmers also contended that they had entered into a tripartite agreement with the
bank regarding their loan as the cold store had got the stocks insured from the
insurance company and the stocks belonged to the farmers.

Contentions by the Insurance Company –

1. The insurance company was of the view that farmers had no locus standi to make any
claim as there was no privity of contract between farmers and the insurance company.

2. The insurance company further contended that farmers were not ‘consumers’ under the
Consumer Protection Act, 1986.

3. They further went on to deny that the farmers had actually produced the agricultural
produce and stored it in the cold store. They also contended that the fire was not
accidental and hence they were not liable to pay any compensation for the same.

Issue

Whether in facts of the present case, the farmers/ beneficiaries could be defined as
consumers?

Decision of State Commission

The Karnataka State Consumer Disputes Redressal Commission at Bangalore held that the
farmers had proved that the fire took place on account of electrical short circuit and no
element of human intervention or use of kerosene was found. The State Commission also
found that as per the tripartite agreement entered into between the farmers, the Bank and the
cold store, it was mandatory for the cold store to insure the goods so hypothecated by the
farmers with the Bank. The insurance company was held liable to pay the amount to the
farmers.

Decision of the National Commission

The National Commission concurred with the findings of the State Commission and held that
the farmers very well fall within the definition of ‘Consumer’ under the Consumer Protection
Act, 1986..

Definition of "Consumer" is very wide- Supreme Court

In the subsequent appeal, the Hon’ble Supreme Court in consonance with the observations
made by the Hon’ble State Commission, Karnataka and Hon’ble National Commission

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observed that the definition of ‘consumer’ under the Consumer Protection Act is very wide
and not only includes a ‘person who hires or avails of the services for consideration’ but also
includes ‘the beneficiary of such services ‘who may be a person other than the person who
hires or avails of services. In the present case, even though the farmers were not directly
involved in undertaking the services of the insurance company, they were certainly the
beneficiary to the same. The Hon’ble Court further disregarded other claims of the insurance
company including the claim that the fire was not accidental and was a result of human
intervention.

Considering the same, the Hon’ble Supreme Court held that the definition of ‘consumer’
includes beneficiaries who can take benefit of the insurance availed by the insured.

The Supreme Court vide this decision has come to the rescue of farmers by giving a vivid and
categorical representation to them within the definition of ‘consumer’ under the Consumer
Protection Act, 1986. While the decision does not clearly categorize ‘farmers’ as
‘consumers’, it surely provides a way for them to be considered as ‘consumer’ when they are
beneficiaries.

4. Macquire Bank Limited v. Shilpi Cable Technologies

Introduction

In a recent landmark ruling Hon’ble Supreme Court while favorably interpreting certain
sections of the Insolvency and Bankruptcy Code, 2016 (“Code”) for foreign operational
creditors disposed of three appeals with similar factual scenarios.

Facts

The facts of the case are as follows: The factual matrix prevailing in the backdrop of one of
the cases was that one Hamera International Private Limited (‘Hamera International’) had
executed an agreement with Macquarie Bank Limited, Singapore (“Macquarie Bank”), by
which the Macquarie Bank purchased the original supplier’s right, title, and interest in a
supply agreement. Certain amounts became due from the Respondent, Shilpi Cable
Technologies Ltd. (‘Shilpi Cable’) to Macquarie Bank, which gave rise to the present dispute.

14
Macquarie Bank issued a demand notice through their Advocates under Section 8 of the
Code, following which it initiated Corporate Insolvency Resolution Process (“CIRP”) by
filing a petition under Section 9 of the Code.

Issues

The main issues in the case were:

1. Whether Section 9(3)(c) of the Code is mandatory or directory in nature, especially in

the context of foreign operational creditors.
2. Whether a demand notice of an unpaid operational debt under Section 8(1) can be
issued by a lawyer on behalf of an operational creditor.

Contentions by the Petitioner

The Learned Counsel on behalf of Macquarie Bank argued a conjoint reading of Section 9(3)
(c), Rule 6 and Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating
Authority) Rules, 2016 (‘Adjudicating Authority Rules’), revealed directory nature of Section
9(3)(c) and that, in the said section, “shall” should be read as “may”. Moreover in accordance
with the ordinary rules of interpretation of statues any interpretation, according to which a
serious general inconvenience is caused to innocent persons or the general public without
really furthering the particular object of the act, should not be read as mandatory. Thus,
Section 9(3)(c) is a procedural section, which is not a condition precedent to allowing an
application under Section 9(1) of the Code.

Secondly, he contended that where a copy of the certificate could only be from a “financial
institution” as defined under Section 3(14) of the Code, and if a non-resident bank such as
Macquarie Bank is not included under Section. 3(14), then it should not operate to non-suit
Macquarie Bank. Moreover, the definition in Section 3(14), though exhaustive, is subject to
contextual interpretation; ergo a financial institution would include a bank outside the
categories mentioned in Section 3(14) when it comes to an operational creditor who is a
resident outside India.

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Contentions of respondent

On the contrary learned counsel on behalf of Shilpi Cable’s emphasized on strict

interpretation of the Code. According to him it is evident from the holistic reading of the
Code that there is a very low threshold for the rejection of an application for operational
creditors (i.e., a pre-existing dispute between the parties). Secondly, ordinary language of the
Section clarified that a person who may be a resident outside India and who has banking
facilities with entities that are not contained within the definition of Section 3(14) would fall
outside the Code. At last, a lawyer’s notice cannot be given under Section 8 of the Code, read
with the Adjudicating Authority Rules and Form 5 therein, as only an “insider” can send such
a notice.

Summary of court decision and judgment

The NCLT after due application of mind held that the application ought to be rejected as first,
Section 9(3)(c) of the Code was not complied with, as Macquarie Bank had failed to submit a
certificate from a financial institution as required by the provision; and second, that the
existence of the debt was disputed by Shilpi Cable in its reply to an earlier statutory notice
sent by Macquarie Bank under Sections 433 and 434 of the Companies Act, 1956, making the
application liable to be rejected under Section 9(5)(ii) of the Code.

Upholding the ruling of the NCLT, the NCLAT dismissed the appeal. It was held that:

a. In its earlier judgment of Smart timing Steel Ltd v National Steel and Agro
Industries Ltd, it has been held that S. 9 (3) (c) of the Code is mandatory and not
directory in nature. This order ought to be followed;
b. The notice under Section (8)(1) was not issued by Macquarie Bank but by their
lawyers. For a notice under this section to be valid, only an “operational creditor
himself, or through a person authorized to act on behalf of the operational creditor”
can send such notice. Accordingly, an advocate/lawyer cannot issue a notice under
Section 8 in absence of any authority as such notice would then be treated as a
lawyer’s notice or a pleader’s notice.

The Hon’ble Supreme Court set aside the orders of the NCLT and the NCLAT, and held that
the Application ought not to be rejected for the following reasons.

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Nature of Section 9(3)(c) of the Code: A Certificate by a Financial Institution is merely
confirmatory evidence- It was held that the expression “confirming” appearing in Section
9(3)(c) of the Code, made it clear that although the certificate is a very important piece of
evidence, it only confirms that there is no payment of an unpaid operational debt. Even Form
5 under Rule 6 of the Adjudicating Authority Rules clarifies that item 7 of Part V is only one
of the documents to be submitted as evidence of default. Further, annexure III in the Form
also speaks of copies of relevant accounts kept by banks/financial institutions maintaining
accounts of the operational creditor, confirming that there is no payment of the unpaid
operational debt, only “if available”. Therefore, a certificate under Section 9 is not a pre-
condition to trigger the Code. The true construction of Section 9(3)(c) is that it is a procedural
provision, which is directory in nature, as the Adjudicatory Authority Rules read with the
Code clearly demonstrate.

The Code cannot be made discriminatory- A foreign supplier may have a foreign banker
who does not fall within Section 3(14) of the Code. The fact that such foreign supplier is an
operational creditor is established from a reading of the definition of “person” contained in
section 3(23) of the Code, as including persons resident outside India, together with the
definition of “operational creditor” contained in Section 5(20), which in turn is defined as “a
person to whom an operational debt is owed and includes any person to whom such debt has
been legally assigned or transferred”.

That such person may be banking with an institution which falls outside the scope of Section
3(14) of the Code cannot be construed in a discriminatory fashion so as to include only those
foreign operational creditors who happen to bank with financial institutions, which are
included under Section 3(14) of the Code. Such a discriminatory interpretation would be
violative of the right to equality enshrined in Article 14 of the Constitution of India, which
applies to all persons including foreigners.

Purposive Interpretation- The Hon’ble Court chose to use creative interpretation in coming

to the conclusion that the word “shall” in Section 9(3)(c) cannot be interpreted as mandating
the provision of a certificate by a financial institution for an application to be complete. It
was observed that compliance with the section would be impossible in cases like the present,
and that a strict interpretation would cause a serious general inconvenience without furthering
the object of the Code. The Court also analyzed various judgments to conclude that even
legislations containing drastic measures are being “creatively interpreted” by courts.

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The Court therefore held that a fair construction of Section 9(3)(c), in consonance with the
object sought to be achieved by the Code, would lead to the conclusion that certification by a
Financial Institution cannot be construed as a threshold bar or a condition precedent as has
been contended by Shilpi Cable.

The Taylor Principle- Shilpi Cable relied upon the principle propounded in Taylor v
Taylor[2], i.e., where a statute states that a particular act is to be done in a particular manner, it
must be done in that manner or not at all. With respect to this, the Court opined that when this
principle leads to impractical, unworkable and inequitable results, it cannot be applied out of
context in situations which are predominately procedural in nature.

Issuance of Notice by Lawyers- Relying on earlier judgments, it was held that the

expression “in relation to” is very wide and specifically includes a position, which is outside
or indirectly related to the operational creditor. It was also observed that the expression
“practice” under Section 30 of the Advocates Act has a very wide import and this would
include all preparatory steps leading to the filing of an application before the Tribunal.
Therefore, by reading Section 30 of the Advocates Act and Sections 8 and 9 of the Code
together with the Adjudicatory Authority Rules and Forms thereunder harmoniously, the
Court concluded that a notice sent on behalf of an operational creditor by a lawyer would be
valid, proper and “in order”.

Analysis

The Hon’ble Supreme Court, while continuing with its positive approach towards the Code,
has interpreted its provisions in a manner so as to make it more inclusive, accessible and far
reaching which in turn contributes to increasing the accessibility and effectiveness of the
Code.

An appreciable factor of the decision is that by clarifying the scope of Section 9 the Hon’ble
Court has removed an important procedural hurdle being faced by several operational
creditors not associated with “financial institutions” as defined under the Code. More
importantly, most foreign operational creditors would have their banking facilities in foreign
banks not registered in India and specifically not within the list of ‘financial institutions’ as
defined under the Code. To keep all such operational creditors outside the ambit of the Code
would be self-deprecating, as one of the objects of the Code was to increase ease of doing

18
business in India for all stakeholders from all jurisdictions and not just Indian entities.
Breaking through some needless red tape, the Court has also clarified that a notice sent by a
lawyer on behalf of an operational creditor would be in order.

Conclusion

The Hon’ble Supreme Court has, through the present decision, effectively allowed foreign
operational creditors to expeditiously file an application and possibly recover their unpaid
dues without getting hampered by onerous procedural necessities or getting entangled into
protracted civil litigation.

5. Z .V. State of Bihar: Reproductive Autonomy and State Liability

Introduction

The Indian Penal Code, 1860 (IPC) (Sections 312–316) criminalizes causing of abortions
both by the pregnant woman herself as well as any other person who assists the woman in
carrying out such abortion. The Medical Termination of Pregnancy Act, 1971 (MTP Act),
carves out an exception to the criminalization of abortions. If a medical practitioner
terminates a pregnancy on being satisfied that one of the circumstances enlisted by the
MTP Act exists, such termination will not constitute an offence under the IPC. The outer
gestation limit for terminating pregnancies under the Act is fixed at 20 weeks of gestation,
except where the life of the pregnant woman is at immediate risk.The Act makes medical
practitioners responsible for determining that the requirements under the Act have been
fulfilled before terminating the pregnancy. Importantly, there is no requirement under the
MTP Act for a court to authorize the termination of pregnancies.

Over the last decade, a series of cases have arisen wherein courts have been approached
seeking permission to terminate pregnancies beyond 20 weeks of gestation and hence
outside the framework for termination of pregnancy under the MTP Act. Some of these
cases have involved victims of rape, or women who are in custodial settings, whose
pregnancies were discovered much before 20 weeks, but the pregnancy was not terminated
on time due to delays by state authorities. Z v. State of Bihar is one such case. The
pregnancy of the woman in this case was a result of rape. She was in a quasi-custodial
setting, when her pregnancy was discovered much before 20 weeks of gestation. Due to a
series of errors and mis-steps by state authorities, the pregnancy was not terminated before

19
 20 weeks, and hence she approached the Supreme Court seeking termination of her post-
20 week pregnancy. On the basis of a finding by a medical board constituted by the Court,
that the termination of the pregnancy may be risky to the life of the woman, the Court did
not permit the termination of the pregnancy. The Court directed the State of Bihar to pay
the woman ₹300,000 as compensation under Section 357A, Code of Criminal Procedure,
1973 (CrPC), on the ground that she was a victim of rape. 7 The Court also gave liberty to
the woman to file a fresh affidavit seeking compensation from the State on the ground of
negligence of state functionaries. The final decision of the Court dealt with issues relating
to reproductive autonomy and choice in the context of termination of pregnancies. Finding
that state authorities had been negligent in exercising their statutory requirements under
the MTP Act, the Court exercising a public law remedy awarded compensation to the
woman who had to carry her pregnancy to term. The case makes an important contribution
to the jurisprudence on reproductive rights and reproductive autonomy, as also the role
and responsibility of functionaries under the MTP Act. It is of special importance for cases
involving victims of rape since the case involves interpretation of the MTP Act in this
context. In this note, I focus on the development of the law and the contribution of the
case in relation to reproductive autonomy and the MTP Act, as well reproductive health
rights of victims of rape. The note is divided into four parts. In the first part, I discuss the
legal framework governing termination of pregnancies in India. In the second part, I
discuss the facts of the case, and in the third part, I narrate the mis-steps of state
authorities in their failure to follow the statutory framework under the MTP Act. In the
fourth part, I argue that the case makes important contributions to the development of the
law in the context of reproductive health rights, and specifically in the context of victims
of rape. I argue that the case is an important foundation for future development of the law.

Legal Framework

Section 3 of the MTP Act provides that a registered medical practitioner as defined in the
Act may terminate a pregnancy which has not exceeded 12 weeks of gestation if he/she is
of the opinion, formed in good faith, that the continuance of the pregnancy would cause a
risk to the life of the pregnant woman or cause ‘grave injury’ to her physical or mental
health. Another circumstance is where the medical practitioner is of the opinion that that
there is a substantial risk that if the child were to be born, it would suffer from physical or
mental abnormalities, so as to be seriously handicapped. If the pregnancy exceeds 12

20
 weeks, but is below 20 weeks, two registered medical practitioners are required to certify
the fulfilment of the aforementioned criteria. Explanation I, which is of relevance in the
present case, states that if the woman alleges that her pregnancy was as a result of rape,
the anguish caused by such pregnancy shall be presumed to constitute grave injury to the
mental health of the woman. Section 3(3) of the Act further states that while determining
whether the continuance of the pregnancy would cause grave injury to the health of the
woman, ‘account may be taken of the pregnant woman’s actual or foreseeable
environment’.

On the question of consent to termination of pregnancy, consent of the guardian (as

defined in the Act) is required only in two circumstances: First, where the woman is under
18 years of age; and second, if she is over 18, but is a ‘mentally ill person’ (as defined in
the Act). The consent of the woman is required in all other cases.

Section 5 of the MTP Act states that if the medical practitioner is of the opinion that the
termination of pregnancy is immediately necessary in order to save the life of the pregnant
woman, the gestation limits mentioned in Section 3 and the other conditions relating to
forming of opinion of the registered medical practitioner/s do not apply.

The Facts in Z v. State of Bihar

Z was a 35-year-old destitute woman, who had been found living on a pavement in Patna,
by the field-coordinator of a rehabilitation centre for women. She was medically examined
on admission to the centre, at which point she was found to be pregnant. This was on 26
January 2017. Z was taken to Patna Medical College and Hospital (PMCH) for further
medical examination on 2 February 2017. An ultrasound examination conducted on 8
February 2017 revealed that she was carrying a foetus of 13 weeks and 6 days gestational
age. Z was also examined by a neuropsychiatric, who diagnosed her as suffering from a
psychiatric illness. Subsequent medical tests also revealed that Z was HIV positive.

On 4 March 2017, when Z was 16 weeks and 3 days pregnant, she expressed her desire to
terminate her pregnancy, and was consequently taken to PMCH. On that day, she
informed the authorities concerned that the pregnancy was a result of rape, which is why
she wanted it terminated. Z was thereafter taken to PMCH again on 14 March 2017 for the
termination of the pregnancy. At this point, she was 17 weeks and 6 days pregnant. Z’s

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 father and brother were summoned by PMCH and their consent was taken for the
termination. However, the termination was not carried out. Thereafter, on 18 March 2017,
a FIR was lodged under Section 376, IPC in the Mahila Police Station, Patna, in
connection with the rape on Z. At this point, the rehabilitation home wrote to PMCH
bringing to their attention that the 20-week limit imposed by the MTP Act for the
termination of pregnancy was approaching. On 29 March 2017, Z’s pregnancy crossed the
20-week mark. She was taken again to PMCH on 3 April 2017 for termination of the
pregnancy. It was not carried out since the pregnancy was now beyond 20 weeks.
Consequently, Z approached the Patna High Court, seeking a direction for termination of
her pregnancy.

The Patna High Court directed the Indira Gandhi Institute of Medical Sciences (IGIMS),
Patna, to constitute a medical board to examine Z and assess her physical and mental
health. In the High Court, the state argued that sufficient facilities were being provided to
Z in the rehabilitation centre. It also argued that the identity of Z’s father could not be
established. Due to these two reasons, the state opposed termination of pregnancy. Z’s
father stated that he had no objection to termination of the pregnancy. Her husband, who
had been impleaded and traced on the directions of the High Court, said that he too did not
have any objection to termination of the pregnancy. He alleged that Z had deserted him 10
years earlier, and he had filed a matrimonial suit in 2015, seeking dissolution of the
marriage. The medical board in its report noted that the pregnancy was of around 23
weeks. They opined that the termination of pregnancy may need ‘major surgical
procedure’, and that such procedure could have consequences such as ‘bleeding, sepsis
and anaesthesia hazards’. They further pointed out that the determination of whether the
foetus was HIV positive could not be made, since it is only when the child is 18 months
old can such determination be made. They also opined that Z was suffering from a
psychiatric illness and required long-term psychiatric treatment. The High Court rejected
the prayer for termination of pregnancy on the ground that Z had informed authorities of
her rape only 13 weeks into the pregnancy (sic). Further, she had filed a writ petition
seeking termination of the pregnancy only post-20 weeks. On this basis, the High Court
arrived at the conclusion that the pregnancy had not caused grave injury to Z’s mental
health. The High Court further ruled that Sections 3 and 5 of the MTP Act did not apply to
Z. The High Court noted the conclusion of the medical board that a surgery would be

22
 hazardous to Z’s life. The High Court finally did not permit the termination of pregnancy
‘in the interest of justice… in the interest of the victim and foetus/prospective child’.

Z then approached the Supreme Court, which also set up a medical board at the All India
Institute of Medical Sciences (AIIMS), New Delhi. She was brought to Delhi on the
directions of the Supreme Court for medical examination by the board. After examining Z,
the board opined that the surgical procedure involved in terminating the pregnancy would
be risky to Z’s life. Consequently, relying on this medical opinion, the Supreme Court also
denied permission to terminate the pregnancy.

Mis-steps and Errors by State Functionaries

An examination of the facts reveals multiple errors on the part of various functionaries. In
the first place, when on 4 March 2017, Z requested that her pregnancy be terminated on
the ground that it was a result of rape, the presumption of ‘grave mental injury’ should
have been drawn, and the pregnancy terminated. This was the first error by PMCH.
Thereafter, when on 14 March, PMCH sought consent of Z’s father (which he gave), the
hospital ignored the fact that consent of the guardian is required only if the woman is
under 18 or if she is a ‘mentally ill person’ as defined in the MTP Act. The MTP Act in
Section 2(b) defines a ‘mentally ill person’ as one who is in need of treatment for any
mental disorder, other than mental retardation. In this case, the diagnosis was not of a
mental disorder, but of ‘mild mental retardation’. Hence, yet again, her guardian’s consent
was not required. PMCH thus erred in not appreciating that the consent of the woman is
primary and is sufficient to terminate a pregnancy that she is carrying. Parental or spousal
consent is not required. At this point, Z’s pregnancy had not crossed the 20-week mark,
and hence, the termination of her pregnancy could have been performed following the
legal framework in the MTP Act.

The state of Bihar too committed the same error that PMCH had—it emphasized on the
need for consent of the guardian and argued that since the identity of the father was
suspected, his consent could not be relied on. The High Court erred in its interpretation of
Explanation 1 to Section 3 of the MTP Act. It concluded that since the complaint of rape
was not made promptly but only in March 2017, the rape had not caused ‘grave mental
injury’ to the victim. This was an error since the MTP Act is clear that pregnancy arising
from rape will be presumed to cause ‘grave mental injury’. By engaging in an exercise of

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 factual interpretation, the High Court went both against the explicit wording, and the spirit
of the MTP Act.

Supreme Court: Developing the Law

The judgement of the Supreme Court is noteworthy for a number of reasons, which I
discuss below.

Clarifying Interpretation of Section 3, MTP Act

The Supreme Court clarified the interpretation of Section 3 of the MTP Act, with respect
to two issues. The first is whether spousal (or parental) consent is required to terminate the
pregnancy of a woman. Second is the interpretation of Explanation I to Section 3 of the
Act.

On the question of spousal/parental consent, the Court emphasized that the consent of the
woman to termination of pregnancy is paramount and should not be second-guessed. One
of the major myths surrounding the MTP Act is that spousal consent is required before the
pregnancy of a woman is terminated. This is in spite of Section 3(4)(b) stating that other
than cases involving girls under the age of 18 or women suffering from a mental illness,
the consent of the pregnant woman is required and, impliedly, of no other person. The
Supreme Court in Z v. State of Bihar made an important contribution by clarifying that
spousal consent is not required for termination of a woman’s pregnancy. It ruled that
PMCH, had erred and had been negligent in not following the statute when denying Z’s
request to terminate her pregnancy. The Court further held that when Z was in a position
to consent, and had in fact expressed her desire to terminate the pregnancy, there was no
reason to seek the consent of her spouse or her father. It thus found error in the approach
of PMCH in seeking Z’s father’s consent, the state in arguing that the father’s identity
could not be established and the High Court in impleading the husband and the father.

The second issue was whether a pregnant woman stating that the pregnancy was a result of
rape, and seeking termination on that ground, is sufficient to invoke the presumption under
Explanation I to Section 3 of the MTP Act that grave injury to her mental health had been
caused due to the rape. The High Court in Z v. State of Bihar did not draw such
presumption and proceeded to adjudicate whether the rape had in fact caused grave injury

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 to the woman’s mental health. It is important that the Supreme Court in Z v. State of Bihar
clarified that the woman stating the pregnancy is a result of rape is sufficient to terminate
the pregnancy. There is no need to either adjudicate on whether the pregnancy was
actually due to rape or whether the rape has in fact caused grave injury to the woman’s
mental health.

Reproductive Autonomy and Rights

From a normative perspective, the Supreme Court in Z v. State of Bihar reiterated that the
focus should be on reproductive autonomy of a woman, when interpreting the provisions
of the MTP Act. In ruling so, the Court followed its prior judgements on the issue,
including Suchita Srivastava v. Chandigarh Administration. In Suchita Srivastava, the
Supreme Court had ruled that a woman’s ‘reproductive choice’ should be respected, even
if there are apprehensions about whether she would be able to undertake maternal
responsibilities after the birth of the child. It hence ruled that the choice of the woman
whether to terminate or carry the pregnancy to the term is paramount. In the context of the
MTP Act, it noted that the statute clearly mentions that the consent of the woman is
required before her pregnancy is terminated. The Court importantly ruled that a woman’s
right to make ‘reproductive choices’ falls within the purview of ‘personal liberty’
guaranteed by Article 21 of the Constitution. It held that the woman’s ‘privacy, dignity,
and bodily integrity’ should be guaranteed. It ruled that the right to make reproductive
choices range from the decision to procreate or not to procreate, the decision to engage in
or not engage in sexual activity, decisions on contraceptive use and to decide on whether
to carry a pregnancy to term or to terminate it. It held that in the case of termination of
pregnancy, restrictions have been placed by the MTP Act, which governs the exercise of
this right.

Subsequently, in Devika Biswas v. Union of India, the Supreme Court noted that the need
to ‘respect and protect’ the reproductive rights of women had been recognized. It cited
international instruments to arrive at this conclusion. This was reiterated by the Court in
Independent Thought v. Union of India.

More recently, the Supreme Court in Sarmishtha Chakrabortty v. Union of India and X v.

Union of India has recognized the bodily integrity of a woman to be sacrosanct. In Meera
Santosh Pal v. Union of India, the Supreme Court recognized that the woman’s decision to

25
 terminate her pregnancy is a facet of her reproductive autonomy. This normative
framework was further strengthened in Z v. State of Bihar. In Z v. State of Bihar, the
Court noted that bodily integrity, personal autonomy and sovereignty that a woman has
over her body have to be respected, when a medical practitioner determines whether the
woman’s pregnancy can be terminated. Subsequently, Justice Chelameshwar, in his
concurring judgement in the nine-judge bench decision in K. S. Puttaswamy v. Union of
India, recognized that the decision of a woman to terminate her pregnancy falls within the
realm of the right to privacy.

Approach in Cases Involving Pregnant Women

Another important holding of the Supreme Court was regarding timeliness and sensitivity
in dealing with matters relating to pregnant women. In holding that the approach of the
High Court was erroneous and lacked sensitivity, the Supreme Court emphasized the need
for proper handling of cases involving pregnant women. It deprecated the approach of the
High Court, and for the delay caused. It is noteworthy that the High Court decided the
case within 19 days of it being filed. However, in the context of a pregnancy, and
especially in the context of medical termination of pregnancy, since a few days may make
a difference, it is important for courts to decide cases involving termination of pregnancy
as expeditiously as possible. In this context, it is important to note that the MTP Act does
not require courts to be approached before a pregnancy is terminated.

The approach to deciding cases involving pregnant women expeditiously must, and by
implication, apply not only to cases involving termination of pregnancy but also in cases
involving women in custodial settings, including incarcerated women. There have been
instances in the past where the woman being in custody became a barrier to obtaining
expeditious medical intervention.Courts taking a pro-active role where women produced
before them, or being tried by them, are pregnant can ensure that reproductive health care
is immediately provided. The Supreme Court in R. D. Upadhyay v. State of Andhra
Pradesh had advised that courts follow a different approach when dealing with cases
involving pregnant women. One of the guidelines issued by the Court was that ‘temporary
release/parole’ should be considered to ensure that the woman does not deliver her child in
the prison. Deciding bail applications of pregnant women expeditiously and releasing
them on bail as far as possible can thus be considered to be mandated by the Supreme
Court.
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Compensation for Mis-steps by State Authorities

The Supreme Court awarded compensation to the woman, both under Section 357A of the
Code of Criminal Procedure, 1973 (CrPC) and using the public law remedy. Importantly,
the Court recognized that the mis-steps by state authorities in not following statutory
mandates fall within the definition of ‘torture’ as defined by the Court in Mehmood
Nayyar Azam v. State of Chhattisgarh. It ruled that violation of the woman’s statutory
rights amounted to mental and psychological harassment, which not only could cause
distress but also impact the dignity of the woman. In the context of the MTP Act, as well
as other statutes which provide legal frameworks for victims’ rights, this interpretation is
crucial since failure by state authorities to follow statutory mandates that further
fundamental rights will lead to the state being liable to pay compensation to impacted
parties under the public law remedy. The Court sought to set a normative standard that
‘truancy (by state functionaries) has no place’40 when dealing with cases of pregnant
women. This interpretation can also be extended to other situations of ‘truancy’ by state
authorities while dealing with victims, for instance, failure to register FIRs in rape cases.
Compensation using the public law remedy may be awarded in appropriate cases.

Conclusion

The normative standard that the Court set in Z v. State of Bihar through its interpretation
of the MTP Act, and its reiteration and clarification of various aspects pertaining to the
Act, has led to the case becoming a focal point for the development of the reproductive
justice jurisprudence. Read with Suchita Srivastava v. Chandigarh Administration, as well
as Justice Puttaswamy v. Union of India, it provides a framework for future adjudication
of reproductive justice cases, not confined only to the MTP Act. It is also particularly
relevant to the sexual and reproductive health rights of victims of sexual offences,
including rape and penetrative sexual assault (under the Protection of Children from
Sexual Offences Act, 2012), since the interpretation of Section 3 of the MTP Act in the
context of rape victims has been clarified in the judgement. In compensating the victim for
the failure of state functionaries in following statutory provisions leading to the violation
of fundamental rights, the Supreme Court has also laid the foundation for compensation
jurisprudence in the context of reproductive health rights. The use of the public law
remedy for state failure in protecting the statutory and constitutional rights of victims of

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 crime further advances the rich jurisprudence that the Supreme Court has already built in
this area

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