TaxTMI 
TaxTMI 
2017 (7) TMI 1081
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.... within the holistic conception of the 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 concerne....
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.... it would be thus appropriate if female doctors/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 ab....
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....is urged by her that the principle of purposive construction 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 betw....
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....014) 9 SCC 657). 12. Mr. Dey, learned counsel appearing for 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....
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....al meaning and for the said purpose, he has drawn inspiration from 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 SC....
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....rnography with due regard for safeguarding the interest and well being of the 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 ....
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....as been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal 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 as....
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.... recording of evidence. Section 35 provides for a period for recording of evidence of child and disposal of case. 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 compensat....
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....inst whom the offence has been committed so as to determine his need for rehabilitation; (xii) any other factor that the Special Court may consider 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 ur....
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....eeping in view electoratecentric interpretation rather than candidatecentric one. The submission is that the purposive interpretation has become the elan vital of 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....
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....ords which are surplusage." The aforesaid analysis clearly shows that a section has to be construed in entirety and not of one part only and further there should be no 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....
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....of Statutes, 10th Edn., p. 19, "has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and 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 pr....
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....urpose of assessment. If that was the position, howsoever wide the words "any individual" or "such individual" as used in Section 16(3) and Section 16(3)(a) may appear to be so as to include 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 pos....
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....en easy for the legislature to say that lands comprised in the improvement schemes should be exempted from the application of the Act. Section 30 had provided for an exception to the application of the beneficent 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 accepta....
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.... it was discernible that the age of the juvenile is the date of occurrence and the said construction is in consonance with the legislative objective. There is neither abnormally stretched interpretation nor the 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 direct....
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....o do so. 49. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & others(1987) 1 SCC 424), Chinnappa Reddy, J., emphasizing on the importance of the text and context in which every word is used in 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 ....
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.... admissible as an aid to its construction. That apart, the preamble of an Act, no doubt, can also be read along with other provisions of the Act to find out the meaning of the words in enacting provisions to decide whether they are 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 sayi....
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....legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the court to go beyond the arid literal confines of the provision and to call in aid other wellrecognised rules 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 withi....
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....odged the same. Dealing with the appeal preferred by the employer, while interpreting the said Act, the Court took note of the background of the Act, examined the scheme of the enactment and referred to the preamble in extenso and various other provisions 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. J....
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.... the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the lifetime of the father, who would be deemed 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.....
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....held: "11. ... If the language of a statute is clear and explicit, effect must be given to it, for in such a case the words best declare the intention of the lawgiver. It would not be right to refuse to place on the language of the statute the plain and natural meaning which it 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 th....
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....lature. Quite apart from, the Court can take aid of causus omissus, only in a case of clear necessity and further it should be discerned from the four corner of the statute. If the meaning is intelligible, the said principle has no entry. It cannot be a ready tool in the hands of a Judge 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. I....
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.... she gave evidence." The Supreme Court referred to Section 170A. On the date the complainant testified, the said Section read as follows: "Section 170A. Evidence through intermediaries. - (1) Whenever criminal proceedings are pending before any court and it appears to such court that it would 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 non....
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.... for children's rights." Courts are bound to give effect to the provisions of section 28(2) in matters that come before them and which involve children. ..." 67. The learned counsel for the appellant has emphasized on the same to bolster the proposition that the POCSO Act being child friendly and meant for protecting 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 assault....
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.... in the text of Section 16(3 ) would demand compelling demonstration that a promise to tell the truth cannot amount to a meaningful procedure for adults with mental disabilities. That apart, when such a witness promises to tell the truth, it reinforces the seriousness of the occasion and the need to do so. In dealing with 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 s....
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....h the aspects, according to me, are distinguishable. As far as the majority view of the Supreme Court of Canada is concerned, it interpreted Section 16(3) of the Canada Evidence Act and appreciated the various aspects of the evidence tendered by an adult who is mentally challenged and has declined to add something which the Parliament 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 t....
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.... by or by consent either express or implied of the guardian or other person having lawful charge of that person would be an offence by reason of any harm which it may cause or be intended by the doer to cause or be known by the doer to be likely to cause to that person. Section 90 deals with consent known to be given under fear or misconception. 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 sufferi....
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....pecial Leave to Appeal was preferred before this Court. The threeJudge Bench referred to The Metical Termination of Pregnancy Act, 1971 (for short, 'the 1971 Act') which clearly indicates that consent is an essential condition for performing an abortion on a woman who has attained the age of majority and does not suffer from any "mental illness". 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 preg....
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....tal disorder other than mental retardation. 75. Dealing with the definition, the Court referred to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, '1995 Act') and opined that in the said Act also "mental illness" has been defined as mental disorder other than mental retardation. The Court 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 guardia....
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.... proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential. 3. The mentally retarded person has a right to economic security and to a decent standard of living. He has a right to perform productive work or to engage in any other meaningful occupation to the fullest possible 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. When....
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....es that will enable him or her to be a good parent. 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. It observed: "40. We must also be mindful of the varying degrees of mental retardation, namely, those described as borderline, mild, moderate, severe and 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 ....
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....o offence is committed against them as regards sexual assault, sexual harassment and sexual abuse. The sanguine purpose is to safeguard the interest and well being of the children at every stage of judicial proceeding. It provides for a child friendly procedure. It categorically makes a distinction between a child and an adult. On a reading of the POCSO Act, it is clear to us that it is gender neutral. In 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 legislat....
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.... "Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue. ... Let the Judges also remember that Solomon's throne was supported by lions on both sides: let them be lions, but yet lions under the throne." In the said case, a passage from Frankfurter, J.62 was reproduced which I think it apt to quote: "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....
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....the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit." On a perusal of the aforesaid provision, it is quite vivid that when Court makes a recommendation for compensation, the District Legal Services Authority or the State Legal Services Authority is required to decide the quantum of compensation 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 ....
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....passed from the 18th century onwards. A legislative judgment is anathema. As early as 1789, the U.S. Constitution expressly outlawed bills of attainder vide Article I Section 9(3). This being the case with the Legislature, the counter argument is that the Judiciary equally cannot 'make' but can only 'declare' law. While declaring the law, can Judges make law as well? This interesting question has haunted Anglo-Saxon jurisprudence for at least 500 years. Very early in the 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....
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.... to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. This is laid down by Mr. Justice Burton, in a very excellent opinion, which is to be found in the case of Warburton v. Loveland (see ante, p. 76. n.)." (at page no.1234) 7. This celebrated passage has since come to 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. ....
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....Court of the United States, being appointed in 1930 and having retired in 1941. 10. In an illuminating article by Archibald Cox in 60 Harv. Law Rev. 370, 1946-47, the learned author put the dilemma between literal and purposive construction thus:- "The task of interpretation, thus conceived, presents a second insoluble dilemma. Since the words of a statute are chosen by the legislature to express its meaning, they are "no doubt the most important single factor in ascertaining its intent." Our 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 circumst....
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.... or whether the power (conferred by the 1968 Act) is an ancillary power to the provision of care. Similar difficulties arise under para (c). My Lords, I revolt against a step by step approach, from one doubtful expression to another, where each step is hazardous, through referential legislation, towards a conclusion, to my mind so far out of accord with any credible policy. The fact that Parliament for its own purposes chooses to legislate in this obscure manner does not force us to be the blind led by the blind." (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 ....
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....r conservative view is the view of Justice Holmes, in a celebrated dissent, in Southern P. Co. v. Jensen, 244 US 205 at page 221: "I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions." 17. The Supreme Court of India has echoed the aforesaid statement in at least two judgments. In V.C. Rangadurai v. D. Gopalan & Others, 1979 1 SCR 1054, Krishna Iyer, J. when confronted with the correct interpretation of Section 35(3) of the 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 p....
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.... L.J. said: "[W]hen a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament ... and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do 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." 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 t....
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....ion. This theory was reiterated in Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Ors, 2001 (4) SCC 139:- "While examining a particular statute for finding out the legislative intent it is the attitude of Judges in arriving at a solution by striking a balance between the letter and spirit of the statute without acknowledging that they have in any way supplemented the statute would be the proper criterion. The duty of Judges is to expound and not to legislate is a fundamental rule. There is no doubt a marginal area in which the courts mould or creatively interpret 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 en....
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....atute 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 statute-maker, 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 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 constru....
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....f purposive interpretation: 'Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.' The pendulum has swung towards purposive methods of construction. This 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 ....
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....eral Commissioner of Taxation (1981) 147 CLR 297 at 320-321]." 24. It is thus clear on a reading of English, U.S., Australian and our own Supreme Court judgments that the 'Lakshman Rekha' has in fact been extended to move away from the strictly literal rule of interpretation back to the rule of the old English case of Heydon, where the Court must have recourse to the purpose, object, text, and context of a particular provision before arriving at a judicial result. In fact, the wheel has turned full circle. It started out by the rule as stated in 1584 in Heydon's case, which was then waylaid by the literal 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. ....
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....on containing drastic penal provisions, as follows: "It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. We are unable to persuade ourselves to agree with Mr. Rao that it is only the property or valuable security given at the time of marriage which would bring the same within the definition of 'dowry' punishable 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 ot....
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....the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under Sections 161 and 165 of the Penal Code, 1860 committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre-existing offences and enacts a rebuttable presumption contrary to the well-known principles of criminal jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against 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 const....
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.... of. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment. Here, the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to common sense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes. 24. The distinction between a strict construction and a more free one has disappeared in modern times and 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....
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....ect to. The law would have to be interpreted having regard to the subjectmatter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal jurisprudence does not say so.' 50. In M.V. Javali v. Mahajan Borewell & Co. [(1997) 8 SCC 72 : 1997 SCC (Cri) 1239] this Court was considering a similar situation as in the present case. Under Section 278-B of the Income Tax Act a company can be prosecuted and punished for offence committed under Section 276-B; sentence of imprisonment is required to be imposed under the provision of the statute and a company being 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 u....
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....' to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as 'husband' is no ground to exclude them from the purview of Section 304-B or 498-A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions." Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfil the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb case [Appasaheb v. State of Maharashtra, (2007) 9 SCC 721(2007) 9 SCC 721 : (2007) 3 SCC (Cri) 468] followed by the judgment 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 unequi....
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....and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature .... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? 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 ....
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....ecial Courts for speedy trial of such offences. 5. The Bill would contribute to enforcement of the right of all children to safety, security and protection from sexual abuse and exploitation. 6. The notes on clauses explain in detail the various provisions contained in the Bill. 7. The Bill seeks to achieve the above objectives." Para 1 of the Statement of Objects and Reasons makes it clear that the Act's reach is only towards the protection of children, as ordinarily understood. The scope of the Act is to protect their "childhood and youth" against exploitation and to see that they are not abused in any manner. 31. Section 2(1)(d), with which we are directly concerned, is set out as under : "2. 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 cal....
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....ild and not an adult. 36. A reading of the Act as a whole in the light of the Statement of Objects and Reasons thus makes it clear that the intention of the legislator was to focus on children, as commonly understood i.e. persons who are physically under the age of 18 years. 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". Does the Judge put himself in the place of the legislator and ask himself whether the legislator 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 ....
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.... 14 (1) Notwithstanding anything contained in clause (c) of sub-section (1) of section 5, every person who is not a minor, shall have a right to appoint a nominated representative. (2) The nomination under sub-section (1) shall be made in writing on plain paper with the person's signature or thumb impression of the person referred to in that sub-section. (3) The person appointed as the nominated representative shall not be a minor, be competent to discharge the duties or perform the functions assigned to him under this Act, and give his consent in writing to the mental health professional to discharge his duties and perform the functions assigned to him under this Act. (4) Where no nominated representative is appointed by a person under subsection (1), the following persons for the purposes 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 ....
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....wise under sub-section (2). (2) Where on an application made to the concerned Board, by a mental health professional or any other person acting in the best interest of the minor, and on evidence presented before it, the concerned Board is of the opinion that,-- (a) the legal guardian is not acting in the best interests of the minor; or (b) the legal guardian is otherwise not fit to act as the nominated representative of the minor, it may appoint, any suitable individual who is willing to act as such, the nominated representative of the minor with mental illness: Provided that in case no individual is available for appointment as a nominated representative, the Board shall appoint the Director in the Department of Social Welfare of the State in which such Board is located, or his nominee, as the nominated representative of 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 s....
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.... access to free education in an appropriate environment till he attains the age of eighteen years." A perusal of the aforesaid Sections would show that children with disabilities are dealt with separately and differently from persons with disabilities. Thus, Sections 4, 9 and 31 give certain rights to children with disabilities as opposed to the other provisions, in particular Section 18, which speaks of adult education and participation thereof by persons with disabilities, obviously referring to persons who are physically above 18 years of age. 41. As a contrast to the 2012 Act with which we are concerned, the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 would make it clear that whichever person is affected by mental retardation, in the broader sense, is a "person with disability" 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 ....