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POCSO Act Cannot be Extended to Mentally Retarded Adults

By Sunil Garodia
First publised on 2017-07-27 21:08:52

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
The Supreme Court has refused to extend the scope of Prevention of Children from Sexual Offences Act (POCSO), 2012 to mentally retarded adults. This is a correct stance as the judges themselves stated that it would amount to judicial overreach as well as it would try to bracket mentally retarded persons in a pre-set chamber whereas the disease has many angles and has to be examined technically.

The case on hand was that of a 38-year old suffering from cerebral palsy who was raped. The father of the victim contented before the court that since his daughter had the mental age equivalent to a “6 or 8 year old child,” her case should be tried according to provisions in the POCSO Act. The judges categorically stated that it was not the intention of the legislature to have such cases tried under the POCSO Act.

The court took pains to explain that the underlying theme behind the POCSO Act was to prevent children who were physically under 18 years of age from predators who, taking advantage of their lack of understanding of the situation and often through their position of trust molested them sexually. The court said it was upon the legislature to examine various facets and decide whether sexual crimes against mentally retarded adults having the mental age of a child below 18 could be tried under the Act.

The POCSO Act was enacted specifically to protect children under the age of 18. Although it is debatable whether the 18-year threshold is correct in this age and time, the idea behind the act is clear. Hence, if it was extended to mentally retarded adults, the focus of the act would get diluted. There is no doubt that cases of sexual crimes against such persons cannot be tried normally as the victim is incapable of providing evidence like a normal person. Hence, there should either be a separate law to deal with such cases or the Supreme Court should issue guidelines that the lower courts must adhere to while dealing with such cases. But these cases cannot, and should not, be tried under POCSO Act, nor should the Act be amended to include such cases within its ambit.

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