SC: mentally retarded adult not a child:

SC: mentally retarded adult not a child: (The Hindu) (Biological age is that matters for SC)

Context:

• The Indian Law considers a person’s age only through age not through mental age.
• This evaluation of age needs to be reconsidered as far as the mentally challenged ones are concerned.

POCSO

• Child sexual abuse laws in India have been enacted as part of the nation’s child protection policies.
• The Parliament of India passed the ‘Protection of Children Against Sexual Offences Bill, 2011’ regarding child sexual abuse on May 22, 2012 into Act.
• The rules formulated by the government in accordance with the law have also been notified on the November 2012 and the law has become ready for implementation.

Objective:

1. The new Act provides for a variety of offenses under which an accused can be punished.
2. It defines a child as a person under age of 18 years. It encompasses the biological age of the child and not on the mental age considerations. As for example:

a. A recent case in SC has been filed where a women of biological age 40yrs but mental age 6yrs was raped. The victim’s advocate argues that “failure to consider the mental age will be an attack on the very purpose of act.” b. SC has reserved the case for judgement and is determined to interpret whether the 2012 act encompasses the mental age or whether only biological age is inclusive in the definition.

3. The act is gender-neutral.

4.The Act also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children. Criticism:

• The Act has been criticized as its provisions seem to criminalize consensual sexual intercourse between two people below the age of 18.
• The 2001 version of the Bill did not punish consensual sexual activity if one or both partners were above 16 years.

Conclusion:

• There are different degrees of mental retardation, the court needs to go into the question of consent to the sexual act which is not provided for in POCSO.