NEW DELHI: The Supreme Court on Friday said that age under the Protection of Children from Sexual Offences (POCSO) Act is physical, not mental as it said that courts should respect the "Lakshman Rekha" of not reading into the law that which was not intended by the legislature while enacting it.
Declining the plea that measuring the age of the victim below 18 years should not be just a physical age but also in term of level of mental maturity, Justice Dipak Misra said: "The only conclusion that can be arrived at is that definition in Section 2(d) defining the term 'age' cannot include mental age."
"... 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" said Justice Rohinton Fali Nariman in his concurring judgment.
"Given the fact that it is a beneficial/penal legislation, we as Judges can extend it only as far as Parliament intended and no further, he added.
The court said while awarding maximum compensation to a rape victim of who is 38 years old with a mental maturity of 6 to 8 years but rejecting the plea that the victim's age should be taken not just in physical terms, but also take into account her mental age as well.
The victim suffers from cerebral palsy.
Awarding the maximum compensation under the scheme framed by the Delhi Government, the court said it was the of "the convinced opinion that it is a fit case for awarding maximum compensation ..."
Declining the plea that the court should read "mental age" into Section 2(d) of the POCSO Act, Justice Misra said: "The Parliament has felt it appropriate that 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 mental retardation are different and they require to be determined by an expert body. The degree is also different," he said, observing: "The parliament, as it seems, has not included mental age. It is with the domain of legislative wisdom."
On the question whether judges could read into a law something not intended by the legislature, Justice Nariman said: "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 of which the Act is woven."
In short, the difference is the well-known philosophical difference between "is" and "ought", he said.