| Headnote |
Protection of Children from Sexual Offences Act, 2012: c Object of its legislation - Discussed. (Per Dipak Misra, J.) s.2(d) - Age - Term 'age' does not include mental age - The Parliament 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 - It may be due to the fact that the standards of menta1 retardation are different D and they require to be determined by an expert body - The degree is also different - By saying that "age" covers "mental age", has the potential to create immense anomalous situations without there being any guidelines or statutory provisions - Juvenile Justice (Care and Protection of Children) Rules, 2000 - r.12 - Juvenile Jmtice (Care and Protection of Children) Act, 2015-s.2(12)- Crime against E children. (Per Dipak Misra, J.) s.2(d)-Age - The statutes mentions "child's" mental disability and not an adult's - A reading of the Act as a whole in the light of the Statement of Objects and Reasons makes it clear that the intention of the legislator was to focus on children, as commonly understood F i.e. persons who are physically under the age of 18 years - 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 G of which the Act is woven - In short, the difference is the we/1- known philosophical difference between "is" and "ought'·' - If the Judge adds something more than what there is in the statute by way of a supposed intention of the legislator and go beyond creative interpretation of legislation to legislating itself, he crosses the Lakshman Rekha and becomes a legislator, stating what the lawought to be instead of what the law is - A scrutiny of other statutes in pari materia would bring this into sharper focus - The Medical Termination of Pregnancy Act, 1971, brings into sharpfocus the distinction between "mentally ill persons" and "minors" - s.3(4)(a) of the 1971 Act again makes it clear that when "the age of 18 years" occurs in a statute, it has reference only to physical age - The distinction between a female who is a minor and an adult woman who is mentally ill is again brought into sharp focus by the statute itself - It must, therefore, be held that Parliament, when it made the 2012 Act, was fully aware of this distinction, and yet cho.se to protect only children whose physical age was below 18 years - A perusal of the provisions of the Mental Healthcare Act, 2017 would again show that a distinction is made between a mentally ill person and a minor - Similarly, the Rights of Persons with Disabilities Act, 2016 maintains the selfsame distinction - A perusal of ss.2, 4, 9, 18 and 31 of 2016 Act would show that children with disabilities are dealt with separately and differently from persons with disabilities - As a contrast to the 2012 Act, the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, I999 would make it clear that whichever person is affected by mental retardation, in the broader sense, is a ·person with disability" under the Act, who gets protection - A reading of the Objects and Reasons of the 1999 Act together with the provisions contained therein would show that whatever is the physical age of the person affected, such person would be a ''person with disability" who would be governed by the provisions of the said Act - Conspicuous by its absence is the reference to any age when it comes to protecting persons with disabilities under the said Act - Thus, it is clear that viewed with the lens of the legislator, violence would be done both to the intent and the language of Parliament if the word "mental" is read into s.2(l)(d) of the 2012 Act. (Per R.F. 925 A B c D E F Nariman, J.) [Concurring] Interpretation of statutes - Purposive construction - There is G no quarrel over the proposition that while interpreting social welfare legislations, the method of purposive construction has to be adopted keeping in view the text and the context of the legislation, the mischief it intends to obliterate and the fundamental intention of the legislature - If the purpose is defeated, absurd result is arrived at. (Per Dipak Misra, J.) |
