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38 Years of Age, Child or An Adult? The Special Leave that might be the Torchbearer of change in interpretation Laws in India

The Apex Court on 2nd April, 2016 was faced with a peculiar yetunique case, when an SLP was filed by a mother on behalf of her mentally disabled child. The factual matrix in brief was the rape of her daughter who had a functional age of 8-9 despite being 38 years of age. The mother prayed before the Supreme Court that due to the functional age of her daughter being less than 18 years, the case should be tried under the Protection of Children from Sexual Activities Act (The act dealing with sexual offences against children). The Court, by granting the Special Leave has accepted to answer the question on the meaning of age under the POCSO Act, i.e. whether it stands for functional age or chronological age.

The hearing will be significant as the question of law is a novel one. However, on a preliminary reading the case does not seem to favour the petitioner on the following grounds:  First, the Preamble of POCSO Act lays down the application of the Act specifically to children with Section 2(d) of the POCSO Act, going on to define a child as anyone below the age of 18 years.therefore substantiating the same. Also, the general procedure adopted by the Courts to determine age of a party under laws relating to minors/children is  by obtaining either the birth certificate or matriculation certificate from school or by a duly constituted Medical Board. Such a procedure shows that the Court looks into the physical age of the person as opposed to his mental age.

Second, the law on interpretation of statutes allows for a strict interpretation of criminal statutes. Therefore, while interpreting ambiguous terms the Court goes for a strict meaning rather than a liberal one. Hence, it would not be wrong to assume that the Court while interpreting the words ‘child’ and ‘age’ would go for their literal meaning i.e. the physical age rather than the chronological one.

Third, even though a matter of this kind has never arisen before Indian Courts, the Supreme Court of Canada has adjudicated the same.The Canadian Supreme Court faced by the similar question of interpretation of the term ‘age’ rejected the notion of interpreting it to include adults who possess the mental age akin to that of a child.

However such precedent has merely a persuasive value alone and cannot be binding upon the Apex Court. The Court can proceed using its power and go against the settled practice. The decision of the Court would be an important one as it can lead to a change in the laws of interpretation.

Swapnil Tripathi is a B.B.A. LL.B. (Hons.) IV Semester semester student of National Law University, Jodhpur.

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  • Devi Jagani says:

    Swapnil, the case being referred by you in the article is an extremely intriguing one, although, I beg to differ on your understanding of its importance. The questions the matter raises are, in my opinion, much deeper and fundamental than the interpretation of the definition of the term ‘child’ as defined in Section 2(d) of The Protection Of Children From Sexual Offences Act, 2012, rather, I believe there existing no ambiguity in the definition there arises no question for interpretation of the law, which is well settled to refer to age in the biological sense, and consequently no question of the courts having to adopt a strict or liberal understanding of the term.

    The case with its novel facts and fascinating formulation of the questions of law, in my opinion, is seeking to question the jurisprudential foundations of our criminal justice system, which in its extant form is not inclusive in its affording procedural protections to victims who are disabled persons. This foundational exclusion of the disabled persons, particularly the mentally impaired, when evaluated against the touchstone of the Indian Constitution, raises a fundamental concern about the claim of equal protection of law (Article 14) being afforded to the disabled victim. The Constitutional provisions being inarticulate in express terms as prohibitive of the discrimination on grounds of disability (refer Article 15) in this light, problematise the situation even further, and require a detailed analysis from the philosophical and jurisprudential angle of the entire structure of the criminal justice administration system of India and its capability to provide procedural protection to the disabled. In a larger sense, such exclusion is raising concerns of human rights violation of with respect to the disabled victim and is simultaneously disputing the whole talk about equal notion of citizenship and thereby, equal protection of civil and political rights of a person. In my opinion, the issue also creates complications for the whole concept of fair trial as being a single edged weapon to protect the rights of the accused, while, recognizing only the role of participation for the victim but affording no rights to ensuring that such participation is effective in its true sense.

    It is wonderful to have an insight of your views on the matter, though I suggest that it might enrich your understanding of the matter if you probe deeper into its jurisprudential formulations. The case therefore, in my opinion, presents a lacuna of the law and is providing the Supreme Court of India an opportunity to develop the law to make it more inclusive to the needs of disabled people by way of judicial activism, and is not fundamentally about the interpretation of the POSCO Act, as such dynamic interpretation would be constrained by the jurisprudential evolution of the legal system as regards the disabled persons.
    I am extremely happy to see your concern about this issue, which is not given much importance by the media, as it deals with the claims of the socially marginalized in one important sense. Critical engagement and appraisal of the law as a criminal law student from a holistic perspective keeping in line with the current developments will take you a long way.

    I would like to thank your criminal law professor, Mr. Renjith Thomas, by whom I happen to be taught the subject as well, for having designed a CRE exercise on the basis of the above case, which raises questions of fundamental importance. To say the least, I believe you can learn a lot from his awareness about legal issues in general.

    Keep reflecting and expressing your views as a part of the legal fraternity.

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