Supreme Court: Refusing to expand the scope of the word ‘child’ under Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) to include the “mental age” of a person or the age determined by the prevalent science pertaining to psychiatry so that a mentally retarded person or an extremely intellectually challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term “child”, the bench of Dipak Misra and R.F. Nariman, JJ held that the Parliament has felt it appropriate that the definition of the term “age” by chronological age or biological age to be the safest yardstick than referring to a person having mental retardation.
In the case where both the judges wrote their separate but concurring opinion, it was said that the POCSO Act has identified minors and protected them by prescribing the statutory age which has nexus with the legal eligibility to give consent. It may be due to the fact that the standards of mental retardation are different and they require to be determined by an expert body. The degree is also different. If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether there is a consent or not. In certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula.
Explaining the scope of the power of the Court to interpret the word “child” to give it a broader meaning, it was noticed that the legislature despite having the intent in its Statement of Objects and Reasons and the long Preamble to the POCSO Act, had defined the term “age” which does not only mention a child but adds the words “below the age of 18 years. The Court said that had the word “child” alone been mentioned in the Act, the scope of interpretation by the Courts could have been in a different realm and the Court might have deliberated on a larger canvass.
The Court was hearing the appeal of a sexual assault victim suffering from Cerebral Palsy due to which though being a 38-year-old, her mental age is no more than 6-8 years. [Eera v. State, CRIMINAL APPEAL NOS.12171219 OF 2017, decided on 21.07.2017]