While formulating and enacting the Protection of Children from Sexual Offences (POCSO) Act of 2012, which defines a ‘child’ as a person under 18 years of age, Parliament did not take into  consideration the case of  people who  are  over 18, but had the “mental age” of a child, maybe even a toddler, considering their physical and mental condition.

It has been a major drawback of the Act, and had been up for interpretation by the Supreme Court. The apex court on Friday, following long deliberations, ruled that it is the biological and not mental age of a rape survivor which should be the yardstick for deciding whether the case would be filed under the stringent POCSO Act.

This paradox was highlighted in the order of the bench of Justices Dipak Misra and RF Nariman, who said that it was up to the legislators to interpret and provide guidelines for judgments to run on. They said:. “…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 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.”

The bench also said: “If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether there is a consent or not. In certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula. It is difficult to say in absolute terms.”

This was the judgment in a case being fought by the 68-year-old mother of a 40-year old woman whose is suffering from cerebral palsy since birth and her mental age has been determined through tests to be that of a six-year-old. She had been the victim of a sexual assault, and while the sole accused has died in custody, her mother wants this case to be moved to the Special Court dealing with POCSO matters.

With this order, the bench turned down the plea of the mother.

—India Legal Bureau​