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TMI Blog2017 (7) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... term "child". 3. Before I note the submissions of Ms. Aishwarya Bhati, learned counsel for the appellant, the supporting submissions by the respondent State and the proponements in oppugnation by the learned senior counsel who was engaged on behalf of the accusedrespondent No. 2 by the Court as the said respondent chose not to enter appearance, few facts are essential to be noted. The appellant is represented by her mother on the foundation that she is suffering from Cerebral Palasy (R. Hemiparesis) and, therefore, though she is biologically 38 years of age, yet her mental age is approximately 6 to 8 years. In this backdrop, it is contended that the trial has to be held by the Special Court established under the POCSO Act. As the facts would unroll, the mother of the appellant had lodged FIR No. 197 of 2014 at Police Station Defence Colony, New Delhi against the respondent No. 2 alleging that he had committed rape on her mentally retarded daughter and on the basis of the FIR, investigation was carried on and eventually charge sheet was laid for the offence punishable under Section 376(2)(l) of the Indian Penal Code (IPC) before the concerned Judicial Magistrate, who, in turn, com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors/interpreters are available at the time of the evidence of the prosecutrix. Learned APP will file a status report in this regard before the next date. In the meanwhile the learned Sessions Judge (South District) will make necessary arrangements for videography of the proceedings as the prosecutrix mostly communicates through gestures." 4. The matter was finally disposed of vide order dated 29.06.2015 and the appellant felt aggrieved as the two main prayers, namely, (i) transfer of the case to the Special Court established under the POCSO Act as the functional age of the prosecutrix is 6 to 8 years and (ii) the transfer of the case from P.S. Defence Colony to the Crime Branch for proper supervisional investigation were not allowed. As the impugned order would show, the High Court directed that the case should be assigned to a trial court presided over by a lady Judge in Saket Court. 5. When the matter was listed on 01.04.2016, it was contended by Ms. Bhati, learned counsel for the appellant that the prosecutrix has been suffering from a devastating mental and physical disorder since her birth and though she is biologically aged about 38 years, she has not mentally grown beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction is required to be adopted keeping in view the intrinsic perspective of POCSO Act and construction should be placed on the word "age" to compositely include biological and mental age so that the protective umbrella meant and recognized for the child under the law to avoid abuse and exploitation is achieved. It is contended by her that likes of the appellant who suffer from mental disabilities or are mentally challenged are unable to keep pace with biological age and their mental growth and understanding is arrested and unless they get the protection of law that the legislature has conceived, it would be an anathema that the law that has been brought in to protect the class, that is, child, leaves out a part of it though they are worse than the children of the age that is defined under the POCSO Act. Elaborating further, she would submit that a mentally retarded person may have the body mass, weight and height which will be matching the chronological age or biological age of 30 years, but in reality behaves like a child of 8 to 10 years, for the mental age, as it is called, stops progressing. She has drawn a comparison between various provisions of the IPC where the legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the first respondent - State, submits that POCSO Act has been introduced with a view to provide protection of the children from the offences of sexual assault, sexual harassment and abuse with due regard to safeguard the interest and well being of the children at every stage of judicial proceeding including children friendly procedure, recording of evidence and establishment of Special Courts for the speedy trial and, therefore, a person who is mentally challenged/retarded is required to be brought within the definition of a child so that the life is ignited to the piece of legislation. Learned counsel would submit that when such a person is incapable of understanding what is happening to her, she is equal to a child and when such an interpretation is placed, it serves the basic purpose of behind the Act that the legislature has intended to achieve. It is his further submission that there is a distinction between two terms, namely, "age" and "years", for "age" signifies mental or biological/physical age whereas "years" refer to chronology and hence, it is possible to interpret the word "age" in a particular provision to mean mental age without offending the term of the word "yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Bennion on Statutory Interpretation, 5th Edn. p.825. He would put forth the stand that if the term "age" is interpreted to mean "mental age", it would lead to ambiguity, chaos and unwarranted delay in the proceedings and also it would have the effect potentiality to derail the trial and defeat the purpose of the Act, for the informant will have the option to venture on the correctness of the mental age. Learned senior counsel would further urge that various Courts in other parts of the world have treated the child keeping in view the chronological age unless the mental age has been specifically considered for inclusion by the legislature. Mr. Hegde, in his written notes of submission, has reproduced passages from R. v. Sharpe (BCCA 1999 416) [British Columbia Court of Appeal], R v. Cockerton[1901] 1 KB 726] [Kings Bench] and OggMoss v. R[1984] 2 SCR 173] [Supreme Court of Canada]. According to him, when the definition of "child" in Section 2(d) is plain and intelligible, the Court ought not add or read words into the same regard being had to the pronouncements in P.K. Unni v. Nirmala Industries and others(1990) 2 SCC 378) and Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e child at every stage of the judicial process incorporating childfriendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences. 5. ..... 6. ..... 7. ....." 17. The Preamble of the POCSO Act reads thus: "An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. WHEREAS clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children; AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child; AND WHEREAS it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal place in the text of the POCSO Act. 19. Having analysed the Statement of Objects and Reasons and the Preamble of the POCSO Act, it is necessary to appreciate what precisely the POCSO Act projects. 20. Chapter II of the POCSO Act deals with sexual offences against children. Part A of the said Chapter provides for penetrative sexual assault and punishment therefor. Section 3 stipulates what is the penetrative sexual assault and Section 4 provides punishment for such offence. Part B of the said Chapter deals with aggravated penetrative sexual assault and punishment therefor. Section 5 copiously deals with what can constitute aggravated penetration sexual assault. It is extremely significant to note that Section 5(a) enumerates number of circumstances where the offence becomes aggravated one. It includes in its ambit various situations and also certain categories of persons. The provision is quite elaborate. Section 5(k) to which my attention has been drawn reads thus: "(k) whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child;" The aforesaid provision, as is evident, lays stress on the mental disability of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 36 stipulates that child should not see the accused at the time of testifying. The said provision protects the child and casts an obligation on the Special Court to see that the child, in no way, is exposed to the accused at the time of recording of evidence. Recording of the statement of a child is through video conferencing or by utilizing single visibility mirrors or curtains or any other device is permissible. This provision has its own sanctity. Section 37 deals with trials to be conducted in camera and Section 38 provides assistance of an interpreter or expert while recording evidence of a child. Section 42A lays the postulate that POCSO Act is not in derogation of the provisions of any other law. 24. Section 45 empowers the Central Government to make rules for carrying out the purposes of the POCSO Act. In exercise of powers conferred under Section 45, a set of rules, namely, the Protection of Children from Sexual Offences Rules, 2012 ('2012 Rules') has been framed and the said Rules have come into force on 14.11.2012. Rule 7 which deals with compensation reads as under: "7. Compensation ( 1) The Special Court may, in appropriate cases, on its own or on an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider to be relevant. (4) The compensation awarded by the Special Court is to be paid by the State Government from the Victims Compensation Fund or other scheme or fund established by it for the purposes of compensating and rehabilitating victims under section 357A of the Code of Criminal Procedure or any other laws for the time being in force, or, where such fund or scheme does not exist, by the State Government. (5) The State Government shall pay the compensation ordered by the Special Court within 30 days of receipt of such order. (6) Nothing in these rules shall prevent a child or his parent or guardian or any other person in whom the child has trust and confidence from submitting an application for seeking relief under any other rules or scheme of the Central Government or State Government." 25. I have extracted the relevant provisions of the POCSO Act and referred to the schematic content in its perspective context. The enthusiastic submissions of Ms. Bhati and the submission advanced in support by Mr. Dey are meant to urge the Court to adopt the purposive approach regard being had to the centripodal interest of the "child" that can, in its connotative contextual expanse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory interpretation because of progressive social climate and Judges' statesmanship. Krishna Iyer, J., in his inimitable style, had said "when legislative purpose or intention is lost, then the process of interpretation is like to adorn the skin, and to miss the soul". A court has to be progressive in its thought and should follow the path of construction that comprehensively meets the legislative intention. If a Judge gets stuck with the idea that construction is the safest, the enactment is not fructified, the purpose is missed and the soul is dismissed. A narrow construction of a concept invites a hazard whereas a broad exposition enlarges the sweep and achieves the statutory purpose. These are certain abstractions. It will apply in a different manner in different statutes, like tax law, penal law, social welfare legislation, excise law, election law, etc. That apart, the law intends to remedy a mischief. It also sets goal and has a remedial intent. It also states certain things which clearly mean what has been said. In that case, there is no room for the Judge and solely because he is a constructionist Judge, cannot possess such tool to fly in the realm of fanciful area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempt to recognize words which are surplusage. 30. In State of Himachal Pradesh & another v. Kailash Chand Mahajan & others(1992 Supp. (2) SCC 351), the Court referred to a passage from Francis Bennion's Statutory Interpretation (1984 edn.) which illustrates the distinction between the legislative intention and the purpose or object of the legislation. The said passage reads as follows: "The distinction between the purpose or object of an enactment and the legislative intention governing it is that the former relates to the mischief to which the enactment is directed and its remedy, while the latter relates to the legal meaning of the enactment." 31. After reproducing the same, the Court observed that there is a great distinction between the two. While the object of legislation is to provide a remedy for the malady, on the contrary, the legislative intention relates to the meaning from the exposition of the remedy as enacted. The Court further ruled that for determining the purpose of legislation, it is permissible to look into the circumstances which were prevalent at that time when the law was enacted and which necessitated the passing of that enactment and for the limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object of the whole Act; to consider, according to Lord Coke: (1) What was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4) The reason of the remedy". Turning to the history of the legislation, various provisions of the said Act and doctrine of severability, the Court came to hold that it will not be questioned that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories. The difference between the two classes of competitions is as clearcut as that between commercial and wagering contracts. The Court further held that whether the Parliament would have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what gives the answer. Nor does the restriction of the impugned provisions to competitions of a gambling character affect either the texture or the colour of the Act; nor do the provisions require to be touched and rewritten before they could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude within their connotation the male as well as the female of the species taken by themselves, these words in the context could only have been meant as restricted to the male and not including the female of the species. If these words are used as referring only to the male of the species the whole of the Section 16(3)(a) can be read harmoniously in the manner above comprehending within its scope all the four cases specified in subclauses (i) to (iv) thereof and so also Section 16(3)(b). We are therefore of opinion that the words "any individual" and "such individual" occurring in Section 16(3) and Section 16(3)(a) of the Act are restricted in their connotation to mean only the male of the species, and do not include the female of the species, even though by a disjunctive reading of the expression "the wife" or "a minor child" of "such individual" in Section 16(3)(a) and the expression "by such individual" for the benefit of his wife or a minor child or both in Section 16(3)(b), it may be possible in the particular instances of the mothers being connected with the minor children in the manner suggested by the Revenue to include the mothers also within the connotation of these word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neficent provisions of the Act and it would not be unreasonable to hold that even if Section 30(c) was reasonably capable of the construction, the Court should prefer the alternative construction which is also reasonably possible. In construing the provisions which provide for exceptions to the applicability of beneficent legislation, if two constructions are reasonably possible, the Court would be justified in preferring that construction which helps to carry out the beneficent purpose of the Act and does not unduly expand the area or the scope of the exception. 40. On a proper analysis of the aforesaid authority, it is clear as crystal that when two constructions are reasonably possible, preference should go to one which helps to carry out the beneficent purpose of the Act; and that apart, the said interpretation should not unduly expand the scope of a provision. Thus, the Court has to be careful and cautious while adopting an alternative reasonable interpretation. The acceptability of the alternative reasonable construction should be within the permissible ambit of the Act. To elaborate, introduction of theory of balance cannot be on thin air and in any case, the Courts, bent w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject of the Act is read out of context. Thus, the context and the exposition of intention of words in the schematic backdrop struck a harmonious bond. 43. In Shankar Kisanrao Khade v. State of Maharashtra(2013) 5 SCC 546), the Court, taking into consideration the conduct of the police for not registering a case under Section 377 IPC against the accused, the agony undergone by a child of 11 years with moderate intellectual disability, nonreporting of offence of rape committed on her after having witnessed the incident either to the local police or to the Juvenile Justice Board, gave certain directions for compliance in future which are necessary to protect the children from such sexual abuses. The Court ruled that it has a duty to do so because the Court has guardianship over minor children, especially with regard to the children having intellectual disability, since they are suffering from legal disability. 44. I may hasten to state here that observations and directions given in the said case are absolutely within the permissible limits of Juvenile Justice Act, 2000 and as well as CrPC. Accentuation on duty and role of the Court in the said case do not throw any laser beam or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter of interpretation of statutes, opined: "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear or ambiguous but the preamble in itself not being an enacting provision is not of the same weight as an aid to construction of a Section of the Act as are other relevant enacting words to be found elsewhere in the Act. The utility of the preamble diminishes on a conclusion as to clarity of enacting provisions. It is therefore said that the preamble is not to influence the meaning otherwise ascribable to the enacting parts unless there is a compelling reason for it. 51. In Central Bank of India v. State of Kerala and others(2009) 4 SCC 94), the threeJudge Bench, speaking through Singhvi, J., quoted Professor H.A. Smith as has been quoted by Justice G.P. Singh in his book Principles of Statutory Interpretation. The said passage is reproduced below: "'No word', says Professor H.A. Smith 'has an absolute meaning, for no words can be defined in vacuo, or without reference to some context'. According to Sutherland there is a 'basic fallacy' in saying 'that words have meaning in and of themselves', and 'reference to the abstract meaning of words', states Craies, 'if there be any such thing, is of little value in interpreting statutes'. ... in determining the meaning of any word or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation. Thus, the Court in certain situations allows room to go beyond the confines of the literal meaning and to take recourse to other aids for construction. Consequence of preference of one on the other also gets accent. 54. In Kehar Singh & Ors v. State (Delhi Admn.) (1988) 3 SCC 609), the Court ruled that the Court should not consider any provision out of the framework of the statute and not view the provisions as abstract principles separated from the motive force behind. It is the duty of the Court to consider the provisions in the circumstances to which they owe their origin and to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences. That apart, the said adventure, no doubt, enlarges the discretion of the Court as to interpretation, but it does not imply power to substitute individual notions of legislative intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions and interpreting the words which were used in the provisions opined that the scheme of the legislation intends to prevent commission of unfair labour practices through the intervention of the Court and for that purpose, the said Act has been enacted. The twoJudge Bench referred to the decision in Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation(1971) 3 All ER 237 : (1971) 1 WLR 1381) wherein Chinnappa Reddy, J. had made the following observations: "The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the 'colour', the 'content' and the 'context' of such statutes (we have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds(1971) 3 All ER 237 : (1971) 1 WLR 1381). In the same opinion Lord Wilb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med to be "absent" for the purposes of Section 6(a) of the HMG Act and Section 19(b) of the GW Act." Be it noted, the said interpretation was placed to keep the statutes within the constitutional limits. 58. Recently, in Ajitsinh Arjunsinh Gohil v. Bar Council of Gujarat and another(2017) 5 SCC 465), the Court, while interpreting Section 36B of the Advocates Act, 1961, quoted the following observations of Sabyasachi Mukharji, J. (as his Lordship then was) in Atma Ram Mittal v. Ishwar Singh Punia(1988) 4 SCC 284): "9. ... Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the subjectmatter, the effects and consequence, or the spirit and reason of the law. See Commentaries on the Laws of England (facsimile of 1st Edn. of 1765, University of Chicago Press, 1979, Vol. 1, p. 59). Mukherjea, J. as the learned Chief Justice then was, in Poppatlal Shah v. State of Madras (AIR 1953 SC 274) said that each word, phrase or sentence was to be construed in the light of purpose of the Act itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must bear on the ground that it produces a consequence which could not have been intended by the legislature. It is only from the language of the statute that the intention of the Legislature must be gathered, for the legislature means no more and no less than what it says. It is not permissible to the Court to speculate as to what the Legislature must have intended and then to twist or bend the language of the statute to make it accord with the presumed intention of the legislature. ..." 62. I have referred to the aforesaid authorities to highlight that legislative intention and the purpose of the legislation regard being had to the fact that context has to be appositely appreciated. It is the foremost duty of the Court while construing a provision to ascertain the intention of the legislature, for it is an accepted principle that the legislature expresses itself with use of correct words and in the absence of any ambiguity or the resultant consequence does not lead to any absurdity, there is no room to look for any other aid in the name of creativity. There is no quarrel over the proposition that the method of purposive construction has been adopted keeping in view the text and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge to introduce as and what he desires. 63. Keeping in view the aforesaid parameters, I am required to scrutinize whether the content and the context of the POCSO Act would allow space for the interpretation that has been canvassed by the learned counsel for the appellant, which has also got support from the State, before us. The POCSO Act, as I have indicated earlier, comprehensively deals with various facets that are likely to offend the physical identity and mental condition of a child. The legislature has dealt with sexual assault, sexual harassment and abuse with due regard to safeguard the interest and well being of the children at every stage of judicial proceeding in an extremely detailed manner. The procedure is child friendly and the atmosphere as commanded by the provisions of the POSCO Act has to be congenial. The protection of the dignity of the child is the spine of the legislation. It also lays stress on mental physical disadvantage of a child. It takes note of the mental disability. The legislature in its wisdom has stipulated a definition of the "child" which I have noted hereinbefore. The submission is that the term "age" should not be perceived through the restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d expose any witness under the age of eighteen years to undue mental stress or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary." It was contended before the Court that once the witness reached the age of 18 years, there was no power or discretion to invoke Section 170A. The Apex Court took note of the subsequent amendment made in 2007 by Section 68 of Act 32 of 2007 to include not only witnesses who were biologically under the age of eighteen but also those who were mentally under the age of eighteen. The Court referred to the decision in S v Dayimani(2006 (2) SACR 594 (E) and dealt with the same by stating thus: "In Dayimani, the complainant was regarded as 'moderately mentally retarded' and s 170A was nonetheless invoked (wrongly so that court held) because the complainant was eighteen years old at the time of testifying. It is not necessary to consider whether Dayimani has been correctly decided. The proper approach, in my view, would be to consider the evidence other than that adduced by the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tecting the dignity of the child regard being had to her physical and mental or body and mind integrity interpretation of the term "age" should include mental age so that statute becomes purposively child sensitive. 68. In Her Majesty The Queen v. D.A.I. [2012] 1 RCS 149], before the Supreme Court of Canada the question arose whether the trial Judge had incorrectly interpreted the requirements of Section 16 of the Canada Evidence Act for the testimonial competence of persons of 14 years of age or older (adults) with mental disabilities. Section 16(3) of the said Act imposes two requirements for the testimonial competence of an adult with mental disabilities: (1) the ability to communicate the evidence; and (2) a promise to tell the truth. In the said case, the victim was an adult aged about 26 years and her mental age was assessed at 6 years old. She was sexually assaulted. The trial court acquitted the accused which was confirmed by the Court of Appeal. The Supreme Court of Canada by majority judgment unsettled the conclusion of the trial court and the Court of Appeal after dealing with provisions pertaining to Section 16 of the Canada Evidence Act as introduced in 1987. The tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the evidence of children in Section 16.1, Parliament held that a promise to tell the truth was all that is required of a child capable of responding to questions. Parliament did not think a child's promise, without more, is an empty gesture. 69. The second argument, raised in support of the proposition that "promising to tell the truth" in Section 16(3 ) implies a requirement that the witness must show that she understands the nature of the obligation to tell the truth is that Parliament has not enacted a ban on questioning adult witnesses with mental disabilities on the nature of the obligation to tell the truth, as it did for child witnesses in 2005 in Section 16.1(7). To understand this said argument, the Court briefly traced the history of Section 16.1., and noted the submission: "[52] The final and most compelling answer to the equivalency argument is simply this: When it comes to testimonial competence, precisely what, one may ask, is the difference between an adult with the mental capacity of a sixyearold, and a sixyearold with the mental capacity of a sixyearold? Parliament, by applying essentially the same test to both under s. 16(3 ) and s. 16.1(3 ) and (6 ) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has not envisaged. It has only elaborated the process of adequate, proper and sensitive appreciation keeping in view the words used in the statute. 71. In this context, a passage from Tulshidas Kanolkar (supra) will be appropriate to refer. In the said case, the victim of rape was an adult who was a mentally challenged person and her IQ was not even 1/3rd of what a normal person has. She had become pregnant, and on being asked by her parents, as to who was responsible for her pregnancy, she on her own way pointed out finger at the appellant therein. During the trial, the accused indirectly took the stand of consent apart from other pleas. The trial court repelled the plea of consent and found the appellant guilty. In appeal, the High Court negatived the contention raised by the accusedappellant by upholding the conviction but reduced the sentence to seven years. Before this Court, it was contended that in the absence of any other person being examined, the testimony of the prosecutrix could not be placed reliance upon. The Court analysed the evidence and placed reliance on the version of the victim and rejected the plea of consent stating it as absolutely shallow. The Court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. It also encapsulates of insane person and consent of child which is a person who is under twelve years of age. Section 98 covers right of private defence against the act of a person of unsound mind and when an act which would otherwise be an offence is not offence by reason of want of maturity of understanding, the unsoundness of mind. Section 305 deals with abetment of suicide of child or insane person and provides punishment with death or imprisonment for life, or imprisonment for a term not exceeding ten years. Section 361 deals with kidnapping of minor under the age of 16 years of age from lawful guardianship. The learned counsel for the appellant relying upon the said provisions would contend that IPC prescribes protection on the basis of maturity of understanding to a child, and the same protection has been extended to persons suffering from unsoundness of mind and, therefore, it is limpid that a penal law sometimes makes departure from the chronological age by placing more emphasis on capacity to understand the nature and consequences of an act. On that basis, an argument has been structured to treat the mental age of an adult within the ambit and sweep of the term "age" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Court observed that there is clear distinction between "mental illness" and "mental retardation" for the purpose of the 1971 Act. The next issue the Court addressed is the exercise of "parens patriae" jurisdiction. The Court opined that the victim's reproductive choice has to be respected in spite of other factors such as lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy with full term and the assumption of maternal responsibilities therefor. The Court adopted the said view as the applicable statute contemplates that even a woman who is found to be mentally retarded should give her consent for termination of her pregnancy. Analysing Section 3 of the 1971 Act, the Court ruled that the legislative intention was to provide a qualified right to abortion and the termination of pregnancy has never been recognized as a normal recourse for expecting mothers. In the said context, the Court held: "22. There is no doubt that a woman's right to make reproductive choices is also a dimension of "personal liberty" as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also took note of the definition of "mental retardation" under the 1995 Act. The definition read as follows: "2(r) 'mental retardation' means a condition of arrested or incomplete development of mind of a person which is specially characterised by subnormality of intelligence." 76. The Court also took note of the fact that the same definition of "mental retardation" has also been incorporated under Section 2(g) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. In that context, the Court further expressed the view that the legislative provisions in the various Acts clearly show that persons who are in a condition of "mental retardation" should ordinarily be treated differently from those who are found to be "mentally ill". While a guardian can make decisions on behalf of a "mentally ill person" as per Section 3(4)(a) of the 1971 Act, the same cannot be done on behalf of a person who is in a condition of "mental retardation". After so stating, the Court opined that there cannot be a dilution of the requirement of consent since the same would amount to an arbitrary and unreasonable restriction on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible extent of his capabilities. 4. Whenever possible, the mentally retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lives should receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances as close as possible to those of normal life. 5. The mentally retarded person has a right to a qualified guardian when this is required to protect his personal wellbeing and interests. 6. The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility. 7. Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profound instances of the same. Persons suffering from severe and profound mental retardation usually require intensive care and supervision and a perusal of academic materials suggests that there is a strong preference for placing such persons in an institutionalised environment. However, persons with borderline, mild or moderate mental retardation are capable of living in normal social conditions even though they may need some supervision and assistance from time to time. 41. A developmental delay in mental intelligence should not be equated with mental incapacity and as far as possible the law should respect the decisions made by persons who are found to be in a state of mild to moderate "mental retardation"." 79. Be it noted, similar distinction has been maintained in The Rights of Persons with Disabilities Act, 2016. The purpose of referring to the said judgment is that this Court has kept itself alive to the fact that the Parliament has always kept the mental retarded person and mentally ill person in two different compartments. 80. Mr. Hegde, learned senior counsel appearing for respondent No. 2, would contend that degree of mental retardation or the IQ test may not alwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a situation, to include the perception of mental competence of a victim or mental retardation as a factor will really 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 immense anomalous situations without there being any guidelines or statutory provisions. Needless to say, they are within the sphere of legislature. To elaborate, an addition of the word "mental" by taking recourse to interpretative process does not come within the purposive interpretation as far as the POCSO Act is concerned. I have already stated that individual notion or personal conviction should not be allowed entry to the sphere of interpretation. It has to be gathered from the legislative intention and I have already enumerated how the legislative intention is to be gathered. Respect for the dignity of a person, as submitted, has its own pedestal but that conception cannot be subsumed and integrated into a definition where the provision is clear and unambiguous and does not admit of any other interpretation. If a victim is mentally retarded, definitely the court trying the case shall t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the highest exercise of judicial duty is to subordinate one's private personal pulls and one's private views to the law of which we are all guardians-those impersonal convictions that make a society a civilised community, and not the victims of personal rule." 86. In State of Uttar Pradesh and others v. Subhash Chandra Jaiswal and others(2017) 5 SCC 163), it has been held: "17. A Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law. x x x x 19. In Vemareddy Kumaraswamy Reddy v. State of A.P. (2006) 2 SCC 670) the Court observed that: "15. ... the Judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased." 87. In view of the aforesaid principles, the only conclusion that can be arrived at is that definition in Section 2(d) defining the term "age" cannot include mental age. 88. Having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to be awarded under the Scheme prepared by the State Government in coordination with the Central Government. The State/District Legal Services Authority has to conduct an inquiry and award the adequate compensation by completing the inquiry. Had the accused been alive, the trial would have taken place in a Court of Session as provided under the CrPC. As the accused has died and the victim is certified to be a mentally disabled person and is fighting the lis for some time to come within the purview of the POCSO Act wherein the trial is held in a different manner and the provisions relating to the compensation are different, I direct that the State Legal Services Authority, Delhi shall award the compensation keeping in view the Scheme framed by the Delhi Government. 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. 89. The appeals are disposed of, accordingly. JUDGMENT R.F.NARIMAN, 1. Having read the erudite judgment of my learned brother, and agreeing fully with him on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... history of this jurisprudence, Heydon's case, 76 E.R. 637 [1584] declared as under: "And it was resolved by them, that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:- 1st. What was the common law before the making of the Act, 2nd. What was the mischief and defect for which the common law did not provide, 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo , and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico ." 5. Several centuries later, the Privy Council, (in a case which came up from the Bombay High Court, construing the Ship Registry Act of 1841) in Crawford v. Spooner, Moore's Indian Appeals, Volume 4 (1846 to 1850) 179, held as follows:- "Their Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o represent what has been described as the 'Golden Rule' of interpretation of statutes. The construction of a clause in a will was before the House of Lords and not the construction of a statute. Nevertheless, the "Golden Rule" was held to cover the construction of wills, statutes and all other written instruments. 8. It will be noticed, that both the Privy Council and the House of Lords emphasized the literal meaning of the text of a statute. Interestingly, the Privy Council added that the text must necessarily be construed with the aid of the context of the words that are to be construed, and that the words in question could be controlled or altered by the context or the Preamble of the statute. The House of Lords went further, and stated that the grammatical and ordinary sense of the words to be construed would be given effect to unless it would lead to some absurdity, repugnance, or inconsistency with the rest of the statute, in which case the grammatical and ordinary sense of the words may be modified so as to avoid such absurdity or inconsistency, but no further. It is important to note that, even under this rule, the literal meaning of the text of a statute is not sacrosanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belief in the supreme importance of a public, fixed, and ascertainable standard of conduct requires, moreover, a measure of adherence to what those subject to a statute would understand to be the meaning of its terms. Yet "there is no surer way to misread any document than to read it literally." Common speech is not exact and often does not precisely fit those situations, and those only, which a statute seeks to cover. Indispensable words have gathered up connotations in the past which cling persistently in new surroundings. And even if some technical terminology like that of science were available, legislatures could not anticipate and provide with particularity for each set of circumstances comprehended within a general purpose. The result is that "in every interpretation we must pass between Scylla and Charybdis." No one has ever suggested that the courts must always follow the letter of a statute regardless of the outcome, nor does anyone contend that the words may be entirely disregarded. The issue is where to strike the balance." (at page Nos.375 and 376) 11. Added to these problems is the problem of inept draftsmanship. In Kirby v. Leather, 1965(2) All E.R. 441, Danckwerts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind." (at page No.470) 13. The Indian Income Tax Act, 1960 has also been the subject matter of judicial criticism. Often, amendment follows upon amendment making the numbering and the meaning of its sections and subsections both bizarre and unintelligible. One such criticism by Hegde, J. in Commissioner of Income Tax v. Distributor (Baroda) (P) Ltd., (1972) 4 SCC 353, reads as follows: "We have now to see what exactly in the meaning of the expression "in the case of a company whose business consists wholly or mainly in the dealing in or holding of investments" in the main Section 23-A and the expression "in the case of a company whose business consist wholly or mainly in the dealing in or holding of investments" in clause (i) of Explanation 2 to Section 23-A. The Act contains many mind-twisting formulas but Section 23-A along with some other sections takes the place of pride amongst them. Section 109 of the 1961 Income Tax Act which has taken the place of old Section 23-A of the Act is more understandable and less abstruse. But in these appeals we are left with Section 23-A of the Act." (Para 15) 14. All this reminds one of the old British ditty: "I'm the Parliament's draftsman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Advocates Act, 1961, held: "Speaking frankly, Section 35(3) has a mechanistic texture, a set of punitive pigeon holes, but we may note that words grow in content with time and circumstance, that phrases are flexible in semantics, that the printed text is a set of vessels into which the court may pour appropriate judicial meaning. That statute is sick which is allergic to change in sense which the times demand and the text does not countermand. That court is superficial which stops with the cognitive and declines the creative function of construction. So, we take the view that "quarrying" more meaning is permissible out of Section 35(3) and the appeal provisions, in the brooding background of social justice sanctified by Article 38, and of free legal aid enshrined by Article 39-A of the Constitution. xx xx xx Judicial "Legisputation" to borrow a telling phrase of J. Cohen, is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory provision. In that sense, "interpretation is inescapably a kind of legislation" [Dickerson: The Interpretation and Application of Statutes, p. 238]. This is not legislation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is woven, but he can and should iron out the creases." 27. Though the above observations of Lord Denning were disapproved in appeal by the House of Lords in Magor and St. Mellons v. Newport Corpn. [(1951) 2 All ER 839 (HL)] Sarkar, J. speaking for the Constitution Bench in M. Pentiah v. Muddala Veeramallappa [(1961) 2 SCR 295 : AIR 1961 SC 1107] adopted that reasoning of Lord Denning. Subsequently also, Beg, C.J. in Bangalore Water Supply and Sewerage Board v. A. Rajappa [(1978) 2 SCC 213: 1978 SCC (L&S) 215 : AIR 1978 SC 548] approved the observations of Lord Denning stating thus: (SCC p. 285, para 148) "Perhaps, with the passage of time, what may be described as the extension of a method resembling the 'arm-chair rule' in the construction of wills, Judges can more frankly step into the shoes of the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state." (emphasis supplied) 28. It will be befitting, in this context, to recall the view expressed by Judge Frank in Guiseppi v. Walling [144 F 2d 608, 620, 622 (CCA 2d, 1944) quoted in 60 Harvard Law Review 370, 372] which read thus: "The necessary generality in the wordings of man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terpret legislation and they are thus finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing. (See: Corocraft Ltd. v. Pan American Airways Inc. [(1968) 3 WLR 714 : (1968) 2 All ER 1059 : (1969) 1 QB 616] WLR, p. 732 and State of Haryana v. Sampuran Singh [(1975) 2 SCC 810].) But by no stretch of imagination a Judge is entitled to add something more than what is there in the statute by way of a supposed intention of the legislature. It is, therefore, a cardinal principle of construction of statutes that the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed." [at para 17] 21. Instances of creative interpretation are when the Court looks at both the literal language as well as the purpose or object of the statute in order to better determine what the words used by the draftsman of legislation mean. In D.R. Venkatachalam v. Deputy Transport Commissioner, (1977) 2 SCC 273, an early instance of this is found in the concurring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression "Prize Chit" in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason to depart from the Court's construction." [para 33] 23. Indeed, the modern trend in other Commonwealth countries, including the U.K. and Australia, is to examine text as well as context, and object or purpose as well as literal meaning. Thus, in Oliver Ashworth Ltd. V. Ballard Ltd., [1999] 2 All ER 791, Laws L.J. stated the modern rule as follows: "By way of introduction to the issue of statutory construction I should say that in my judgment it is nowadays misleading - and perhaps it always was - to seek to draw a rigid distinction between literal and purposive approaches to the interpretation of Acts of Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Comrs v Adamson (1877) 2 App Cas 743 at 763, [1874-80] All ER Rep 1 at 11. In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently. For these slightly different reasons I agree with the conclusion of the Court of Appeal that s 1(1) of the 1990 Act must be construed in a purposive way." (at 122, 123)66 We find the same modern view of the law in CIC Insurance Limited v. Bankstown Football Club Limited, F.C. (1997) 187 CLR 384, where the High Court of Australia put it thus: 66 In a recent judgment by a 7 Judge Bench of this Court , the majority, speaking through Lokur, J., referred to the aforesaid judgment with approval. See Abhiram Singh v. C.D. Commachen - 2017 (2) SCC 629 at Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral interpretation rule laid down by the Privy Council and the House of Lords in the mid 1800s, and has come back to restate the rule somewhat in terms of what was most felicitously put over 400 years ago in Heydon's case. 25. Coming to the statute at hand, it was argued before us that even though the statute is a beneficial one, it is penal as well, and that therefore its provisions ought to be strictly construed. Here again, the modern trend in construing penal statutes has moved away from a mechanical incantation of strict construction. In Lalita Jalan v. Bombay Gas Co. Ltd. and Ors., (2003) 6 SCC 107, this Court referred to the correct principle of construction of penal statutes as follows: "We would like to mention here that the principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. In Murlidhar Meghraj Loya v. State of Maharashtra [(1976) 3 SCC 684 : 1976 SCC (Cri) 493 : AIR 1976 SC 1929] Krishna Iyer, J. held that any narrow and pedantic, literal and lexical construction of food laws is likely to leave loopholes for the offender to sneak out of the mes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shable under the Act, as such an interpretation would be defeating the very object for which the Act was enacted. Keeping in view the object of the Act, "demand of dowry" as a consideration for a proposed marriage would also come within the meaning of the expression dowry under the Act. If we were to agree with Mr. Rao that it is only the 'demand' made at or after marriage which is punishable under Section 4 of the Act, some serious consequences, which the legislature wanted to avoid, are bound to follow. Take for example a case where the bridegroom or his parents or other relatives make a 'demand' of dowry during marriage negotiations and later on after bringing the bridal party to the bride's house find that the bride or her parents or relatives have not met the earlier 'demand' and call off the marriage and leave the bride's house, should they escape the punishment under the Act. The answer has to be an emphatic 'no'. It would be adding insult to injury if we were to countenance that their action would not attract the provisions of Section 4 of the Act. Such an interpretation would frustrate the very object of the Act and would also run contrary to the accepted principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a pre-condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object i.e. to prevent corruption among public servants and to prevent harassment of the honest among them. 10. A decision of the Judicial Committee in Dyke v.Elliott, The Gauntlet [(1872) LR 4 PC 184], cited by the learned counsel as an aid for construction neatly states the principle and therefore may be extracted: Lord Justice James speaking for the Board observes at LR p. 191: '... No doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now mostly the question is 'what is true construction of the statute?' A passage in Craies on Statute Law, 7th Edn. reads to the following effect: 'The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. "All modern Acts are framed with regard to equitable as well as legal principles." "A hundred years ago", said the court in Lyons case [R. v. Lyons, 1858 Bell CC 38 : 169 ER 1158] , "statutes were required to be perfectly precise and resort was not had to a reasonable construction of the Act, and thereby criminals were often allowed to escape. This is not the present mode of construing Acts of Parliament. They are construed now with reference to the true meaning and real intention of the legislature.' At p. 532 of the same book, observations of Sedgwick are quoted as under: 'The more correct version of the doctrine appears to be that statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a juristic person cannot be subjected to it. It was held that the apparent anomalous situation can be resolved only by a proper interpretation of the section. The Court observed: (SCC p. 78, para 8) '8.Keeping in view the recommendations of the Law Commission and the above principles of interpretation of statutes we are of the opinion that the only harmonious construction that can be given to Section 276- B is that the mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, namely, on persons coming under categories (ii) and (iii) above, but where it cannot be imposed, namely, on a company, fine will be the only punishment.'" In keeping with these principles, in K. Prema S. Rao v.Yadla Srinivasa Rao [(2003) 1 SCC 217 : 2003 SCC (Cri) 271] , this Court said: (SCC p. 228, para 27) "27. The legislature has by amending the Penal Code and the Evidence Act made penal law more strident for dealing with and punishing offences against married women." In Reema Aggarwal v. Anupam [(2004) 3 SCC 199 : 2004 SCC (Cri) 699] , in construing the provisions of the Dowry Prohibition Act, in the context of Section 498-A, this Court applied the mischief rule made imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of Vipin Jaiswal [Vipin Jaiswal v. State of A.P., (2013) 3 SCC 684 : (2013) 2 SCC (Cri) 15] do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise." [Paras 13 to 20] 28. In the case of the Employees' Provident Funds & Miscellaneous Provisions Act, 1952, again a beneficial legislation with dire consequences to those who breach it, this Court construed a penalty provision in the said statute by adopting a purposive approach. Thus, in N.K. Jain v. C.K. Shah, (1991) 2 SCC 495, this Court said: "Relying on the aforesaid principles governing the construction of the penal statute Shri P. Chidambaram, learned counsel for the appellants submitted that the provisions of Section 14(2-A) and Section 17(4) should reasonably be construed and if so construed Section 14(2-A) becomes inapplicable to the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases." (emphas is supplied) Therefore in a case of this nature, a purposive approach is necessary. However, in our view the interpretation of the word 'penalty' used in Section 14(2-A) does not present any difficulty and cancellation is not a punishment amounting to penalty within the meaning of this section." 29. Bearing in mind that the Act with which we are concerned is a beneficial/penal legislation, let us see whether we can extend the definition of "child" in Section 2(1)(d) thereof to include persons below the mental age of 18 years. 30. The Statement of Objects and Reasons of the 2012 Act is set out hereunder: "STATEMENT OF OBJECTS AND REASONS Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Further, Article 39, inter alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Definitions : (1) In this Act, unless the context otherwise requires, - (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) "child" means any person below the age of eighteen years." One look at this definition would show that it is exhaustive, and refers to "any person" an elastic enough expression, below the age of 18 years. "Year" is defined under the General Clauses Act as follows: "3(66). "year" shall mean a year reckoned according to the British calendar." This coupled with the word "age" would make it clear that what is referred to beyond any reasonable doubt is physical age only. 32. Section 5(k) makes this further clear when it states: "5. Aggravated penetrative sexual assault - (a) to (j) xxx xxx xxx (k) whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child." It will be seen that when mental disability is spoken of, it is expressly mentioned by the statute, and what is mentioned is a "child's" mental disability and not an adult's. 33. That a child alone is referred to under the other provisions of the Act is further made clear by Section 13(a), which reads as under: "13. Use of child for pornog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended a certain result, or does he state that this must have been the intent of the legislator and infuse what he thinks should have been done had he been the legislator. If the latter, it is clear that the Judge then would add something more than what there is in the statute by way of a supposed intention of the legislator and would go beyond creative interpretation of legislation to legislating itself. It is at this point that the Judge crosses the Lakshman Rekha and becomes a legislator, stating what the law ought to be instead of what the law is. 37. A scrutiny of other statutes in pari materia would bring this into sharper focus. The Medical Termination of Pregnancy Act, 1971, again brings into sharp focus the distinction between "mentally ill persons" and "minors". Sections 2(b), (c) of the said Act are as follows:- "2. Definitions.-In this Act, unless the context otherwise requires,- (a) xxx xxx xxx (b) "mentally ill person" means a person who is in need of treatment by reason of any mental disorder other than mental retardation. (c) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of this Act in the order of precedence shall be deemed to be the nominated representative of a person with mental illness, namely:-- (a) the individual appointed as the nominated representative in the advance directive under clause (c) of sub-section (1) of section 5; or (b) a relative, or if not available or not willing to be the nominated representative of such person; or (c) a care-giver, or if not available or not willing to be the nominated representative of such person; or (d) a suitable person appointed as such by the concerned Board; or (e) if no such person is available to be appointed as a nominated representative, the Board shall appoint the Director, Department of Social Welfare, or his designated representative, as the nominated representative of the person with mental illness: Provided that a person representing an organisation registered under the Societies Registration Act, 1860 or any other law for the time being in force, working for persons with mental illness, may temporarily be engaged by the mental health professional to discharge the duties of a nominated representative pending appointment of a nominated representative by the concerned Board. (5) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the minor with mental illness." A perusal of the provisions of the Mental Healthcare Act would again show that a distinction is made between a mentally ill person and a minor. Under Section 14, every person who is not a minor shall have the right to appoint a nominated representative, whereas under Section 15, in case of minors, the legal guardian shall be their nominated representative unless the concerned Board orders otherwise, if grounds are made out under sub-section (2). 40. Similarly, the Rights of Persons with Disabilities Act, 2016 maintains the selfsame distinction. Sections 2(s), 4, 9, 18 and 31 of the said Act read as under: "2. Definitions. - In this Act, unless the context otherwise requires - (a) to (r) xxx xxx xxx (s) "person with disability" means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others." "4. Women and children with disabilities - (1) The appropriate Government and the local authorities shall take measures to ensure that the women and children with disabilities enjoy their rights equally with others. (2) The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility" under the Act, who gets protection. The Statement of Objects and Reasons of the said Act reads as under: "STATEMENT OF OBJECTS AND REASONS The Government of India has become increasingly concerned about the need for affirmative action in favour of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. 2. In acknowledgement of a wide range of competencies among these individuals, the Central Government seeks to set up a National Trust to be known as a National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. The said Trust will be promotive, proactive and protectionist in nature. It will seek primarily to uphold the rights, promote the development and safeguard the interests of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability and their families. 3. Towards this goal, the National Trust will support programmes which promote independence, facilitating guardianship where necessary and address the concerns of those special persons who do not have their family support. The Trust will seek to strengthen families and protect the interest of persons with Autism, Cerebral ..... X X X X Extracts X X X X X X X X Extracts X X X X
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