A victim's plea to prosecute her rapist under the stringent act was denied by the top court on Friday.
The Supreme Court has ruled that the Protection of Child against Sexual Offences Act 2012 (POCSO) cannot be invoked to prosecute a man for raping a mentally-challenged adult victim, whose under-developed brain is akin to a child's.
A victim's plea to prosecute her rapist under the stringent act was denied by the top court on Friday.
Taking a stand contrary to its March ruling, the court also abated proceedings against the sole accused — Santosh Yadav — who died during trial court proceedings. Taking a humanitarian view, the SC had then ruled that proceedings in a case involving rape of a woman with mental disability would continue despite the sole accused being dead.
The top court judgment came while deciding on a case where a 38-year-old woman, suffering from cerebral palsy, who was allegedly raped by Yadav. Nina (name changed) wanted her case transferred from the trial court to a special court hearing POCSO cases. Nina, though biologically an adult, is mentally eight years old. After the incident in 2010, Nina further regressed to the mental age of a three year old.
"As regards the quantum, I am of the convinced opinion that it is a fit case where the victim should be granted the maximum compensation as envisaged under the scheme. I clarify that it is so directed regard being had to the special features of the case," Justice Misra said in a direction to the Delhi Legal Services Authority (DLSA).
The bench comprising Justices Dipak Misra and Rohinton Nariman ruled that, "A reading of the Objects and Reasons of the aforesaid 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."
According to Section 2 (d) of the POCSO Act, the term 'age' cannot include 'mental' age as the intent of the Parliament was to focus on children, i.e persons who are physically under the age of 18 years, the top court observed.
Parliament, when it made the 2012 Act, was fully aware of this distinction, and yet chose to protect only children whose physical age was below 18 years, Justice Nariman observed in a separate concurring judgment. He said the interpretation of Section 2(1)(d) of the POCSO Act, 2012 cannot include "mental" age as such an interpretation would be beyond the "Lakshman Rekha".
"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," Justice Nariman said in the 165-page judgment.
The court said stretching of the words 'age' and 'year' would be encroaching upon the legislative function.
"Needless to emphasize 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 sense of creativity. In the instant 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," the bench said.
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