MS. EERA THROUGH DR. MANJULA KRIPPENDORF versus STATE (GOVT. OF NCT OF DELHI) & ANR.

Citation: [2017] 7 S.C.R. 924 · Decided: 21-07-2017 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Disposed off

Cited by 10 judgment(s) · cites 29 · see the full citation network in Lexace

Judgment (excerpt)

[2017] 7 S.C.R. 924 
A 
MS. EERA THROUGH DR. MANJULA KRIPPENDORF 
B 
c 
v. 
STATE (GOVT. OF NCT OF DELHI) & ANR. 
(Criminal Appeal Nos. 1217-1219 of 2017) 
JULY21, 2017 
[DIPAK MISRA AND R. F. NARIMAN, JJ.] 
Protection of Children from Sexual Offences Act, 2012: 
Object of its legislation - Discussed. (Per Dipak Misra, J.) 
s.2(d) - Age - Term 'age' does not include mental age - The 
Parliament felt it appropriate that the 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 menta1 retardation are different 
D 
and they require to be determined by an expert body - The degree 
is also different - By saying that "age" covers "mental age", has 
the potential to create immense anomalous situations without there 
being any guidelines or statutory provisions - Juvenile Justice (Care 
and Protection of Children) Rules, 2000 - r.12 - Juvenile Jmtice 
E 
F 
(Care and Protection of Children) Act, 2015-s.2(12)- Crime against 
children. (Per Dipak Misra, J.) 
s.2(d)-Age - The statutes mentions "child's" mental disability 
and not an adult's - A reading of the Act as a whole in the light of 
the Statement of Objects and Reasons 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 
G of which the Act is woven - In short, the difference is the we/1-
known philosophical difference between "is" and "ought'·' - If the 
Judge adds something more than what there is in the statute by way 
of a supposed intention of the legislator and go beyond creative 
interpretation of legislation to legislating itself, he crosses the 
Lakshman Rekha and becomes a legislator, stating what the law 
H 
924 
MS. EERA TH. DR. MANJULA KRIPPENDORF v. STATE 
(GOVT. OF NCT OF DELHI) 
ought to be instead of what the law is - A scrutiny of other statutes 
in pari materia would bring this into sharper focus - The Medical 
Termination of Pregnancy Act, 1971, brings into sharpfocus the 
distinction between "mentally ill persons" and "minors" - s.3(4)(a) 
of the 1971 Act again makes it clear that when "the age of 18 
years" occurs in a statute, it has reference only to physical age -
The distinction between a female who is a minor and an adult woman 
who is mentally ill is again brought into sharp focus by the statute 
itself - It must, therefore, be held that Parliament, when it made the 
2012 Act, was fully aware of this distinction, and yet cho.se to protect 
only children whose physical age was below 18 years - A perusal 
of the provisions of the Mental Healthcare Act, 2017 would again 
show that a distinction is made between a mentally ill person and a 
minor - Similarly, the Rights of Persons with Disabilities Act, 2016 
maintains the selfsame distinction -
A perusal of ss.2, 4, 9, 18 and 
31 of 2016 Act would show that children with disabilities are dealt 
with separately and differently from persons with disabilities - As a 
contrast to the 2012 Act, the National Trust for Welfare of Persons 
with Autism, Cerebral Palsy, Mental Retardation and Multiple 
Disabilities Act, I999 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 - A reading of 
the Objects and Reasons of the 1999 Act together with the provisions 
contained therein would show that whatever is the physical age of 
the person affected, such person would be a ''person with disability" 
who would be governed by the provisions of the said Act -
Conspicuous by its absence is the reference to any age when it 
comes to protecting persons with disabilities under the said Act -
Thus, it is clear that viewed with the lens of the legislator, violence 
would be done both to the intent and the language of Parliament if 
the word "mental" is read into s.2(l)(d) of the 2012 Act. (Per R.F. 
Nariman, J.) [Concurring] 
Interpretation of statutes - Purposive construction - There is 
no quarrel over the proposition that while interpreting social welfare 
legislations, the meth

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