21 July 2017 4:35 PM GMT
The Supreme Court, on Friday, refused to extend the application of the Protection of Children from Sexual Offences Act (POCSO), 2012 to mentally retarded individuals.Delivering concurring opinions, the Bench comprising Justice Dipak Misra and Justice R.F. Nariman opined that such interpretation would lead to transgression of the judiciary in the field of legislative law making.The...
The Supreme Court, on Friday, refused to extend the application of the Protection of Children from Sexual Offences Act (POCSO), 2012 to mentally retarded individuals.
Delivering concurring opinions, the Bench comprising Justice Dipak Misra and Justice R.F. Nariman opined that such interpretation would lead to transgression of the judiciary in the field of legislative law making.
The occasion for the Bench to delve into the contentious issue came on a Petition filed by a 60-year old Delhi based doctor whose daughter of 38 years with cerebral palsy was raped by a man in the year 2010. She had sought adjudication of the case by a Special Court established under the POCSO Act, contending that her daughter’s mental age was approximately 6 to 8 years. While the accused in the case had passed away, the victim’s mother had fought on for other similarly placed victims.
The Petition, filed through Advocate Aishwarya Bhati, had contended that the definition of ‘child’ under Section 2(d) of the POCSO Act should include within its purview the mental age of a person as well so that a mentally challenged person could also seek protection under the Act. Currently, Section 2(d) defines a child to mean any person below the age of 18 years.
Ms. Bhati had contended that recognition of a child’s mental age instead of his chronological age would, in fact, inject life into the words of the legislation. Such contentions were supported by the State, which submitted that adopting such an interpretation would serve the basic purpose behind the enactment.
On the other hand, Senior Counsel Sanjay Hegde, who had been appointed by the Court to represent the deceased accused, submitted that the Parliament had not made such a distinction in the provisions, and hence, they should be given their literal meaning. Mr. Hegde had, further, submitted that if the term ‘age’ was interpreted to include ‘mental age’, the consequence would be ambiguity, chaos and unwarranted delay.
Opinion by Justice Dipak Misra
At the outset, Justice Misra looked into precedents where purposive construction had been adopted by the Court and a few where it had not been taken recourse to, in order to understand the cardinal principle for the same.
Justice Misra, thereafter, noted that had the world ‘child’ been mentioned in the Act, the scope of interpretation for the Courts would have been greater. He then opined that including mental competence of the victim as a factor under the Act would “tantamount to causing violence to the legislation by incorporating a certain words to the definition”.
“By saying “age” would cover “mental age” has the potential to create the immense anomalous situations without there being any guidelines or statutory provisions,” he observed.
Justice Misra further opined that if a victim is mentally retarded, the Court would take into consideration the absence or presence of consent. In such circumstances, he said, it would depend upon the degree of retardation or understanding.
He, therefore, refused to read expand the definition under the Act, and observed. “Needless to emphasise that courts sometimes expand or stretch the meaning of a phrase by taking recourse to purposive interpretation. A Judge can have a constructionist approach but there is a limitation to his creativity. In the instance case, I am obliged to state that stretching of the words “age” and “year” would be encroaching upon the legislative function. There is no necessity.”
Justice Misra then directed the Delhi State Legal Services Authority to grant maximum compensation to the victim, clarifying that this was in view of the “special features of the case”.
Opinion by Justice R.F. Nariman
Justice Nariman emphasized on the importance and necessity of abstaining from judicial overreach and observed, “The golden rule in determining whether the judiciary has crossed the Lakshman Rekha in the guise of interpreting a statute is really whether a Judge has only ironed out the creases that he found in a statute in the light of its object, or whether he has altered the material of which the Act is woven.”
Concurring with Justice Misra’s views, he then concluded, “Thus, it is clear that viewed with the lens of the legislator, we would be doing violence both to the intent and the language of Parliament if we were to read the word “mental” into Section 2(1)(d) of the 2012 Act. Given the fact that it is a beneficial/penal legislation, we as Judges can only extend it only as far as Parliament intended and no further.”
Read the Judgment Here