Questions of age - On SC's ruling on POCSO Act - 27 July 2017 - The Hindu

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Source - The Hindu

The Supreme Court has shown due restraint in declining to apply the provisions of the Protection of Children from Sexual Offences Act to mentally retarded adults whose mental age may be that of a child. It would have been tempting (appealing to or attracting someone, even if wrong or unwise) to give a purposive interpretation to the term ‘child’ under POCSO, which refers to those below 18 years of age, and rule that it encompasses those with a ‘mental age’ of a person below 18. It would have been compelling (evoking interest, attention, or admiration in a powerfully irresistible way) to acknowledge how similarly a child and an adult with inadequate intellectual growth are placed when it comes to sexual assault: both may show the same lack of understanding about the situation they are in and incapacity to protest. No doubt, any expanded definition to encompass both biological and mental age within the POCSO framework would have helped extend its beneficial features to another section of vulnerable (exposed to the possibility of being attacked or harmed, either physically or emotionally) persons. The court has chosen the challenging path of analysing the import of such judicial interpretation, along with the question whether expanding the notion (a conception of or belief about something) of age is within its remit (cancel or refrain from exacting or inflicting (a debt or punishment)). It has ruled that it is outside its domain. POCSO is meant to protect children from sexual offences. To extend it to adult victims based on mental age would require determination of their mental competence (the ability to do something successfully or efficiently). This would need statutory (required, permitted, or enacted by statute) provisions and rules; the legislature alone is competent to enact (make (a bill or other proposal) law) them. Judicial conferment (to consult together) of power to trial courts to treat some adults as children based on mental capacity would, in the Bench’s opinion, do violence to the existing law protecting children from sexual offences. It noted that there may be different levels of mental competence, and that those with mild, moderate or borderline retardation are capable of living in normal social conditions.

The case before the court related to the rape of a 38-year-old woman with cerebral palsy. Her mother was concerned about the absence of a friendly and congenial (pleasing or liked on account of having qualities or interests that are similar to one's own) atmosphere before the trial court. She approached the courts for a direction to transfer the case to a special court under POCSO, a law that mandates child-friendly procedures and features during the trial, taking into account her daughter’s mental age, which she said was that of a six-year-old. In a fateful turn of events, the lone accused died during these proceedings, bringing the criminal case to an end. The implication of the Supreme Court ruling is that the onus (something that is one's duty or responsibility) is always on trial judges to keep in mind the degree of retardation of victims and their level of understanding while appreciating their evidence. It would be unfortunate if cases get derailed because of either the victims’ inability to communicate effectively or because of the court’s difficulty in understanding their words or gestures. It is now up to the legislature to consider the introduction of legal provisions to determine mental competence so victims with inadequate mental development may effectively testify against sexual offenders.