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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 10 OF 2013
1
2 SALIL BALI … PETITIONER
VS.
2 UNION OF INDIA & ANR. …
RESPONDENTS
WITH
W.P.(C)NOS.14, 42, 85, 90 and 182 OF 2013
WITH
W.P.(CRL)NO.6 OF 2013
AND
T.C.(C)No. 82 OF 2013
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Seven Writ Petitions and one Transferred Case have been taken up
together for consideration in view of the commonality of the grounds and
reliefs prayed for therein. While in Writ Petition (C) No. 14 of 2013,
Saurabh Prakash Vs. Union of India, and Writ Petition (C) No. 90 of 2013,
Vinay K. Sharma Vs. Union of India, a common prayer has been made for
declaration of the Juvenile Justice (Care and Protection of Children) Act, 2000, as ultra vires the Constitution,
in Writ Petition (C) No. 10 of 2013,
Salil Bali Vs. Union of India, Writ Petition (C) No. 85 of 2013, Krishna
Deo Prasad Vs. Union of India, Writ Petition (C) No. 42 of 2013, Kamal
Kumar Pandey & Sukumar Vs. Union of India and Writ Petition (C) No. 182 of
2013, Hema Sahu Vs. Union of India, a common prayer has inter alia been
made to strike down the provisions of Section 2(k) and (l) of the above
Act, along with a prayer to bring the said Act in conformity with the
provisions of the Constitution and to direct the Respondent No. 1 to take
steps to make changes in the Juvenile Justice (Care and Protection of
Children) Act, 2000, to bring it in line with the United Nations Standard
Minimum Rules for administration of juvenile justice. In addition to the
above, in Writ Petition (Crl.) No. 6 of 2013, Shilpa Arora Sharma Vs. Union
of India, a prayer has inter alia been made to appoint a panel of criminal
psychologists to determine through clinical methods whether the juvenile is
involved in the Delhi gang rape on 16.12.2012. Yet, another relief which
has been prayed for in common during the oral submissions made on behalf of
the Petitioners was that in offences like rape and murder, juveniles should
be tried under the normal law and not under the aforesaid Act and
protection granted to persons up to the age of 18 years under the aforesaid
Act may be removed and that the investigating agency should be permitted to
keep the record of the juvenile offenders to take preventive measures to
enable them to detect repeat offenders and to bring them to justice.
Furthermore, prayers have also been made in Writ Petition (Crl.) No. 6 of
2013 and Writ Petition (C) No. 85 of 2013, which are personal to the
juvenile accused in the Delhi gang rape case of 16.12.2012, not to release
him and to keep him in custody or any place of strict detention, after he
was found to be a mentally abnormal psychic person and that proper and
detailed investigation be conducted by the CBI to ascertain his correct age
by examining his school documents and other records and to further declare
that prohibition in Section 21 of the Juvenile Justice (Care and Protection
of Children) Act, 2000, be declared unconstitutional.
2. In most of the matters, the Writ Petitioners appeared in-person, in
support of their individual cases.
3. Writ Petition (C) No.10 of 2013, filed by Shri Salil Bali, was taken
up as the first matter in the bunch. The Petitioner appearing in-person
urged that it was necessary for the provisions of Section 2(k), 2(l) and 15
of the Juvenile Justice (Care and Protection of Children) Act, 2000, to be
reconsidered in the light of the spurt in criminal offences being committed
by persons within the range of 16 to 18 years, such as the gang rape of a
young woman inside a moving vehicle on 16th December, 2012, wherein along
with others, a juvenile, who had attained the age of 17½ years, was being
tried separately under the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000.
4. Mr. Bali submitted that the age of responsibility, as accepted in
India, is different from what has been accepted by other countries of the
world. But, Mr. Bali also pointed out that even in the criminal
jurisprudence prevalent in India, the age of responsibility of
understanding the consequences of one's actions had been recognized as 12
years in the Indian Penal Code. Referring to Section 82 of the Code, Mr.
Bali pointed out that the same provides that nothing is an offence which is
done by a child under seven years of age. Mr. Bali also referred to
Section 83 of the Code, which provides that nothing is an offence which is
done by a child above seven years of age and under twelve, who has not
attained sufficient maturity of understanding to judge the nature and
consequences of his conduct on a particular occasion. Mr. Bali, therefore,
urged that even under the Indian Criminal Jurisprudence the age of
understanding has been fixed at twelve years, which according to him, was
commensurate with the thinking of other countries, such as the United
States of America, Great Britain and Canada.
5. In regard to Canada, Mr. Bali referred to the Youth Criminal Justice
Act, 2003, as amended from time to time, where the age of criminal
responsibility has been fixed at twelve years. Referring to Section 13 of
the Criminal Code of Canada, Mr. Bali submitted that the same is in pari
materia with the provisions of Section 83 of the Indian Penal Code. In
fact, according to the Criminal Justice Delivery System in Canada, a youth
between the age of 14 to 17 years may be tried and sentenced as an adult in
certain situations. Mr. Bali also pointed out that even in Canada the
Youth Criminal Justice Act governs the application of criminal and
correctional law to those who are twelve years old or older, but younger
than 18 at the time of committing the offence, and that, although, trials
were to take place in a Youth Court, for certain offences and in certain
circumstances, a youth may be awarded an adult sentence.
6. Comparing the position in USA and the Juvenile Justice and
Delinquency Prevention Act, 1974, he urged that while in several States, no
set standards have been provided, reliance is placed on the common law age
of seven in fixing the age of criminal responsibility, the lowest being six
years in North Carolina. The general practice in the United States of
America, however, is that even for such children, the courts are entitled
to impose life sentences in respect of certain types of offences, but such
life sentences without parole were not permitted for those under the age of
eighteen years convicted of murder or offences involving violent crimes and
weapons violations.
7. In England and Wales, children accused of crimes are generally tried
under the Children and Young Persons Act, 1933, as amended by Section 16(1)
of the Children and Young Persons Act, 1963. Under the said laws, the
minimum age of criminal responsibility in England and Wales is ten years
and those below the said age are considered to be doli incapax and, thus,
incapable of having any mens rea, which is similar to the provisions of
Sections 82 and 83 of Indian Penal Code.
8. Mr. Bali has also referred to the legal circumstances prevailing in
other parts of the world wherein the age of criminal responsibility has
been fixed between ten to sixteen years. Mr. Bali contended that there was
a general worldwide concern over the rising graph of criminal activity of
juveniles below the age of eighteen years, which has been accepted
worldwide to be the age limit under which all persons were to be treated as
children. Mr. Bali sought to make a distinction in regard to the
definition of children as such in Sections 2(k) and 2(l) of the Juvenile
Justice (Care and Protection of Children) Act, 2000, and the level of
maturity of the child who is capable of understanding the consequences of
his actions. He, accordingly, urged that the provisions of Sections 15 and
16 of the Act needed to be reconsidered and appropriate orders were
required to be passed in regard to the level of punishment in respect of
heinous offences committed by children below the age of eighteen years,
such as murder, rape, dacoity, etc. Mr. Bali submitted that allowing
perpetrators of such crimes to get off with a sentence of three years at
the maximum, was not justified and a correctional course was required to be
undertaken in that regard.
9. Mr. Saurabh Prakash, Petitioner in Writ Petition (C) No. 14 of 2013,
also appeared in-person and, while endorsing the submissions made by Mr.
Bali, went a step further in suggesting that in view of the provisions of
Sections 15 and 16 of the Juvenile Justice (Care and Protection of
Children) Act, 2000, children, as defined in the above Act, were not only
taking advantage of the same, but were also being used by criminals for
their own ends. The Petitioner reiterated Mr. Bali's submission that after
being awarded a maximum sentence of three years, a juvenile convicted of
heinous offences, was almost likely to become a monster in society and pose
a great danger to others, in view of his criminal propensities. Although,
in the prayers to the Writ Petition, one of the reliefs prayed for was for
quashing the provisions of the entire Act, Mr. Saurabh Prakash ultimately
urged that some of the provisions thereof were such as could be segregated
and struck down so as to preserve the Act as a whole. The Petitioner urged
that, under Article 21 of the Constitution, every citizen has a fundamental
right to live in dignity and peace, without being subjected to violence by
other members of society and that by shielding juveniles, who were fully
capable of understanding the consequences of their actions, from the
sentences, as could be awarded under the Indian Penal Code, as far as
adults are concerned, the State was creating a class of citizens who were
not only prone to criminal activity, but in whose cases restoration or
rehabilitation was not possible. Mr. Saurabh Prakash submitted that the
provisions of Sections 15 and 16 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, violated the rights guaranteed to a
citizen under Article 21 of the Constitution and were, therefore, liable
to be struck down.
10. Mr. Saurabh Prakash also submitted that the provisions of Section 19
of the Act, which provided for removal of disqualification attaching to
conviction, were also illogical and were liable to be struck down. It was
submitted that in order to prevent repeated offences by an individual, it
was necessary to maintain the records of the inquiry conducted by the
Juvenile Justice Board, in relation to juveniles so that such records would
enable the authorities concerned to assess the criminal propensity of an
individual, which would call for a different approach to be taken at the
time of inquiry. Mr. Saurabh Prakash urged this Court to give a direction
to the effect that the Juvenile Justice Board or courts or other high
public authorities would have the discretion to direct that in a particular
case, the provisions of the general law would apply to a juvenile and not
those of the Act.
11. Mr. Vivek Narayan Sharma, learned Advocate, appeared for the
petitioner in Writ Petition (Crl.) No. 6 of 2013, filed by one Shilpa Arora
Sharma, and submitted that the Juvenile Justice Board should be vested with
the discretion to impose punishment beyond three years, as limited by
Section 15 of the Juvenile Justice (Care and Protection of Children) Act,
2000, in cases where a child, having full knowledge of the consequences of
his/her actions, commits a heinous offence punishable either with life
imprisonment or death. Mr. Sharma submitted that such a child did not
deserve to be treated as a child and be allowed to re-mingle in society,
particularly when the identity of the child is to be kept a secret under
Sections 19 and 21 of the Juvenile Justice (Care and Protection of
Children) Act, 2000. Mr. Sharma submitted that in many cases children
between the ages of sixteen to eighteen years were, in fact, being
exploited by adults to commit heinous offences who knew full well that the
punishment therefor would not exceed three years.
12. Mr. Sharma urged that without disturbing the other beneficient
provisions of the Juvenile Justice (Care and Protection of Children) Act,
2000, some of the gray areas pointed out could be addressed in such a
manner as would make the Juvenile Justice (Care and Protection of Children)
Act, 2000, more effective and prevent the misuse thereof.
13. In Writ Petition (C) No. 85 of 2013, filed by Krishna Deo Prasad, Dr.
R.R. Kishor appeared for the Petitioner and gave a detailed account of the
manner in which the Juvenile Justice Delivery System had evolved.
Referring to the doctrine of doli incapax, rebuttable presumption and adult
responsibility, Dr. Kishor contended that even Article 1 of the UN
Convention on the Rights of the Child defines a child in the following
terms:
“Article 1
For the purposes of the present Convention, a child means every
human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier.”
14. Dr. Kishor contended that, as pointed out by Mr. Salil Bali, the
expression “child” has been defined in various ways in different countries
all over the world. Accordingly, the definition of a child in Section 2(k)
of the Juvenile Justice (Care and Protection of Children) Act, 2000, would
depend on the existing laws in India defining a child. Dr. Kishor referred
to the provisions of the Child Labour (Prohibition and Regulation) Act,
1986, as an example, to indicate that children up to the age of fourteen
years were treated differently from children between the ages of fourteen
to eighteen, for the purposes of employment in hazardous industries. Dr.
Kishor re-asserted the submissions made by Mr. Bali and Mr. Saurabh
Prakash, in regard to heinous crimes committed by children below the age of
eighteen years, who were capable of understanding the consequences of their
acts.
15. Dr. Kishor also referred to the provisions of Sections 82 and 83 of
the Indian Penal Code, where the age of responsibility and comprehension
has been fixed at twelve years and below. Learned counsel submitted that
having regard to the above-mentioned provisions, it would have to be
seriously considered as to whether the definition of a child in the
Juvenile Justice (Care and Protection of Children) Act, 2000, required
reconsideration. He urged that because a person under the age of 18 years
was considered to be a child, despite his or her propensity to commit
criminal offences, which are of a heinous and even gruesome nature, such as
offences punishable under Sections 376, 307, 302, 392, 396, 397 and 398
IPC, the said provisions have been misused and exploited by criminals and
people having their own scores to settle. Dr. Kishor urged that the
definition of a “juvenile” or a “child” or a “juvenile in conflict with
law”, in Sections 2(k) and 2(l) of the Juvenile Justice (Care and
Protection of Children) Act, 2000, was liable to be struck down and
replaced with a more meaningful definition, which would exclude such
juveniles.
16. Mr. Vikram Mahajan, learned Senior Advocate appearing for the
Petitioner, Vinay K. Sharma, in Writ Petition (C) No. 90 of 2013, urged
that the right given to a citizen of India under Article 21 of the
Constitution is impinged upon by the Juvenile Justice (Care and Protection
of Children) Act, 2000. Mr. Mahajan urged that the Juvenile Justice (Care
and Protection of Children) Act, 2000, operates in violation of Articles 14
and 21 of the Constitution and that Article 13(2), which relates to post
Constitution laws, prohibits the State from making a law which either takes
away totally or abrogates in part a fundamental right. Referring to the
United Nations Declaration on the Elimination of Violence against Women,
adopted by the General Assembly on 20th December, 1993, Mr. Mahajan pointed
out that Article 1 of the Convention describes “violence against women” to
mean any act of gender-based violence that results in, or is likely to
result in, physical, sexual or psychological harm or suffering to women.
Referring to the alleged gang rape of a 23 year old para-medical student,
in a moving bus, in Delhi, on 16th December, 2012, Mr. Mahajan tried to
indicate that crimes committed by juveniles had reached large and serious
proportions and that there was a need to amend the law to ensure that such
persons were not given the benefit of lenient punishment, as contemplated
under Section 15 of the Juvenile Justice (Care and Protection of Children)
Act, 2000. From the figures cited by him, he urged that even going by
statistics, 1% of the total number of crimes committed in the country would
amount to a large number and the remedy to such a problem would lie in the
Probation of Offenders Act, 1958, which made the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000, redundant and ultra
vires Article 21 of the Constitution.
17. Ms. Shweta Kapoor appeared in Transferred Case No. 82 of 2013 in-
person and questioned the vires of Sections 16(1), 19(1), 49(2) and
52(2)(a) of the Juvenile Justice (Care and Protection of Children) Act,
2000, and submitted that they were liable to be declared as ultra vires the
Constitution. Referring to Section 16 of the aforesaid Act, Ms. Kapoor
submitted that even in the proviso to Sub-section (1) of Section 16,
Parliament had recognized the distinction between a juvenile, who had
attained the age of sixteen years, but had committed an offence which was
so serious in nature that it would not be in his interest or in the
interest of other juveniles in a special home, to send him to such special
home. Considering that none of the other measures provided under the Act
was suitable or sufficient, the Government had empowered the Board to pass
an order for the juvenile to be kept in such place of safety and in such
manner as it thought fit. Ms. Kapoor submitted that no objection could be
taken to the said provision except for the fact that in the proviso to
Section 16(2), it has been added that the period of detention order would
not exceed, in any case, the maximum limit of punishment, as provided under
Section 15, which is three years.
18. Ms. Kapoor contended that while the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000, are generally meant
for the benefit of the juvenile offenders, a serious attempt would have to
be made to grade the nature of offences to suit the reformation
contemplated by the Act.
19. As part of her submissions, Ms. Kapoor referred to the decision of
this Court in Avishek Goenka Vs. Union of India [(2012) 5 SCC 321], wherein
the pasting of black films on glass panes were banned by this Court on
account of the fact that partially opaque glass panes on vehicles acted as
facilitators of crime. Ms. Kapoor urged that in the opening paragraph of
the judgment, it has been observed that “Alarming rise in heinous crimes
like kidnapping, sexual assault on women and dacoity have impinged upon the
right to life and the right to live in a safe environment which are within
the contours of Article 21 of the Constitution of India”. Ms. Kapoor also
referred to another decision of this Court in Abuzar Hossain Vs. State of
West Bengal [(2012) 10 SCC 489], which dealt with a different question
regarding the provisions of Section 7A of the Juvenile Justice (Care and
Protection of Children) Act, 2000, and the right of an accused to raise the
claim of juvenility at any stage of the proceedings and even after the
final disposal of the case.
20. In conclusion, Ms. Kapoor reiterated her stand that in certain cases
the definition of a juvenile in Sections 2(k) and 2(l) of the Juvenile
Justice (Care and Protection of Children) Act, 2000, would have to be
considered differently.
21. The next matter which engaged our attention is Writ Petition (Civil)
No.90 of 2013 filed by one Vinay Kumar Sharma, praying for a declaration
that the Juvenile Justice (Care and Protection of Children) Act, 2000, be
declared ultra vires the Constitution and that children should also be
tried along with adults under the penal laws applicable to adults.
22. Writ Petition (Civil) No.42 of 2013 has been filed by Kamal Kumar
Pandey and Sukumar, Advocates, inter alia, for an appropriate writ or
direction declaring the provisions of Sections 2(1), 10 and 17 of the
Juvenile Justice (Care and Protection of Children) Act, 2000, to be
irrational, arbitrary, without reasonable nexus and thereby ultra vires and
unconstitutional, and for a Writ of Mandamus commanding the Ministry of
Home Affairs and the Ministry of Law and Justice, Government of India, to
take steps that the aforesaid Act operates in conformity with the
Constitution. In addition, a prayer was made to declare the provisions of
Sections 15 and 19 of the above Act ultra vires the Constitution.
23. The main thrust of the argument advanced by Mr. Pandey, who appeared
in person, was the inter-play between International Conventions and Rules,
such as the Beijing Rules, 1985, the U.N. Convention on the Rights of the
Child, 1989, and the Juvenile Justice (Care and Protection of Children)
Act, 2000. While admitting the salubirous and benevolent and progressive
character of the legislation in dealing with children in need of care and
protection and with children in conflict with law, Mr. Pandey contended
that a distinction was required to be made in respect of children with a
propensity to commit heinous crimes which were a threat to a peaceful
social order. Mr. Pandey reiterated the submissions made earlier that it
was unconstitutional to place all juveniles, irrespective of the gravity of
the offences, in one bracket. Urging that Section 2(l) of the Juvenile
Justice (Care and Protection of Children) Act, 2000, ought not to have
placed all children in conflict with law within the same bracket, Mr.
Pandey submitted that the same is ultra vires Article 21 of the
Constitution. Referring to the report of the National Crime Records Bureau
(NCRB) for the years 2001 to 2011, Mr. Pandey submitted that between 2001
and 2011, the involvement of juveniles in cognizable crimes was on the
rise. Mr. Pandey urged that it was a well-established medical-
psychological fact that the level of understanding of a 16 year-old was at
par with that of adults.
24. Mr. Pandey's next volley was directed towards Section 19 of the
Juvenile Justice (Care and Protection of Children) Act, 2000, which
provides for the removal of any disqualification attached to an offence of
any nature. Mr. Pandey submitted that the said provisions do not take into
account the fact relating to repeated offences being perpetrated by a
juvenile whose records of previous offences are removed. Mr. Pandey
contended that Section 19 of the Act was required to be amended to enable
the concerned authorities to retain records of previous offences committed
by a juvenile for the purposes of identification of a juvenile with a
propensity to repeatedly commit offences of a grievous or heinous nature.
25. Mr. Pandey submitted that Parliament had exceeded its mandate by
blindly adopting eighteen as the upper limit in categorising a juvenile or
a child, in accordance with the Beijing Rules, 1985, and the U.N.
Convention, 1989, without taking into account the socio-cultural economic
conditions and the legal system for administration of criminal justice in
India. Mr. Pandey urged that the Juvenile Justice (Care and Protection of
Children) Act, 2000, was required to operate in conformity with the
provisions of the Constitution of India.
26. Ms. Hema Sahu, the petitioner in Writ Petition (Civil) No. 182 of
2013, also appeared in person and restated the views expressed by the other
petitioners that the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, commonly known as the “Beijing Rules”,
recognized and noted the difference in the nature of offences committed by
juveniles in conflict with law. Referring to the decision of this Court in
the case commonly known as the “Bombay Blasts Case”, Ms. Sahu submitted
that a juvenile who was tried and convicted along with adults under the
Terrorist and Disruptive Activities Act (TADA), was denied the protection
of the Juvenile Justice (Care and Protection of Children) Act, 2000, on
account of the serious nature of the offence. Ms. Sahu ended on the note
that paragraph 4 of the 1989 Convention did not make any reference to age.
27. Appearing for the Union of India, the Additional Solicitor General,
Mr. Siddharth Luthra, strongly opposed the submissions made on behalf of
the Petitioners to either declare the entire Juvenile Justice (Care and
Protection of Children) Act, 2000, as ultra vires the Constitution or parts
thereof, such as Sections 2(k), 2(l), 15, 16, 17, 19 and 21. After
referring to the aforesaid provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000, the learned ASG submitted that
Parliament consciously fixed eighteen years as the upper age limit for
treating persons as juveniles and children, taking into consideration the
general trend of legislation, not only internationally, but within the
country as well.
28. The learned ASG submitted that the Juvenile Justice (Care and
Protection of Children) Act, 2000, was enacted after years of deliberation
and in conformity with international standards as laid down in the U.N.
Convention on the Rights of the Child, 1989, the Beijing Rules, 1985, the
Havana Rules and other international instruments for securing the best
interests of the child with the primary object of social reintegration of
child victims and children in conflict with law, without resorting to
conventional judicial proceedings which existed for adult criminals. In
the course of his submissions, the learned ASG submitted a chart of the
various Indian statutes and the manner in which children have been excluded
from liability under the said Acts upto the age of 18 years. In most of the
said enactments, a juvenile/child has been referred to a person who is
below 18 years of age. The learned ASG submitted that in pursuance of
international obligations, the Union of India after due deliberation had
taken a conscious policy decision to fix the age of a child/juvenile at the
upper limit of 18 years. The learned ASG urged that the fixing of the age
when a child ceases to be a child at 18 years is a matter of policy which
could not be questioned in a court of law, unless the same could be shown
to have violated any of the fundamental rights, and in particular Articles
14 and 21 of the Constitution. Referring to the decision of this Court in
BALCO Employees Union Vs. Union of India [(2002) 2 SCC 333], the learned
ASG submitted that at paragraph 46 of the said judgment it had been
observed that it is neither within the domain of the Courts nor the scope
of judicial review to embark upon an enquiry as to whether a particular
public policy was wise or whether something better could be evolved. It was
further observed that the Courts were reluctant to strike down a policy at
the behest of a Petitioner merely because it has been urged that a
different policy would have been fairer or wiser or more scientific or more
logical. The learned ASG further urged that Article 15(3) of the
Constitution empowers the State to enact special provisions for women and
children, which reveals that the Juvenile Justice (Care and Protection of
Children) Act, 2000, was in conformity with the provisions of the
Constitution.
29. The learned ASG submitted that in various judgments, this Court and
the High Courts had recognised the fact that juveniles were required to be
treated differently from adults so as to give such children, who for some
reason had gone astray, an opportunity to realize their mistakes and to
rehabilitate themselves and rebuild their lives. Special mention was made
with regard to the decision of this Court in Abuzar Hossain (supra) in this
regard. The learned ASG also referred to the decision of this Court in
State of Tamil Nadu Vs. K. Shyam Sunder [(2011) 8 SCC 737], wherein it had
been observed that merely because the law causes hardships or sometimes
results in adverse consequences, it cannot be held to be ultra vires the
Constitution, nor can it be struck down. The learned ASG also submitted
that it was now well-settled that reasonable classification is permissible
so long as such classification has a rational nexus with the object sought
to be achieved. This Court has always held that the presumption is always
in favour of the constitutionality of an enactment, since it has to be
assumed that the legislature understands and correctly appreciates the
needs of its own people and its discriminations are based on adequate
grounds.
30. Referring to the Reports of the National Crime Reports Bureau,
learned ASG pointed out that the percentage of increase in the number of
offences committed by juveniles was almost negligible and the general
public perception in such matters was entirely erroneous. In fact, the
learned ASG pointed out that even the Committee appointed to review the
amendments to the criminal law, headed by former CJI, J.S. Verma, in its
report submitted on 23rd January, 2013, did not recommend the reduction in
the age of juveniles in conflict with law and has maintained it at 18
years. The learned ASG pointed out that the issue of reduction in the age
of juveniles from 18 to 16 years, as it was in the Juveniles Justice Act of
1986, was also raised in the Lok Sabha on 19th March, 2013, during the
discussion on the Criminal Law (Amendment) Bill, 2013, but was rejected by
the House.
31. The learned ASG submitted that the occurrence of 16th December, 2012,
involving the alleged gang rape of a 23 year old girl, should not be
allowed to colour the decision taken to treat all persons below the age of
18 years, as children.
32. Mr. Anant Asthana, learned Advocate appearing for HAQ : Centre for
Child Rights, submitted that the Juvenile Justice (Care and Protection of
Children) Act, 2000, as amended in 2006 and 2011, is a fairly progressive
legislation, largely compliant with the Constitution of India and the
minimum standards contained in the Beijing Rules. Mr. Asthana contended
that the reason for incidents such as the 16th December, 2012, incident,
was not on account of the provisions of the aforesaid Act, but on account
of failure of the administration in implementing its provisions. Learned
counsel submitted that all the Writ Petitions appeared to be based on two
assumptions, namely, (i) that the age of 18 years for juveniles is set
arbitrarily; and (ii) that by reducing the age for the purpose of defining
a child in the aforesaid Act, criminality amongst children would reduce.
Mr. Asthana submitted that such an approach was flawed as it had been
incorrectly submitted that the age of 18 years to treat persons as children
was set arbitrarily and that it is so difficult to comprehend the causes
and the environment which brings children into delinquency. Mr. Asthana
submitted that the answer lies in effective and sincere implementation of
the different laws aimed at improving the conditions of children in need of
care and protection and providing such protection to children at risk. Mr.
Asthana urged that the objective with which the Juvenile Justice (Care and
Protection of Children) Act, 2000, was enacted was not aimed at delivering
retributive justice, but to allow a rehabilitative, reformation-oriented
approach in addressing juvenile crimes. Learned counsel submitted that the
apathy of the administration towards juveniles and the manner in which they
are treated would be evident from the fact that by falsifying the age of
juveniles, they were treated as adults and sent to jails, instead of being
produced before the Juvenile Justice Board or even before the Child
Welfare Committees to be dealt with in a manner provided by the Juvenile
Justice (Care and Protection of Children) Act, 2000, for the treatment of
juveniles.
33. Mr. Asthana submitted that even as recently as 26th April, 2013, the
Government of India has adopted a new National Policy for Children, which
not only recognises that a child is any person below the age of eighteen
years, but also states that the policy was to guide and inform people of
laws, policies, plans and programmes affecting children. Mr. Asthana urged
that all actions and initiatives of the national, State and local
Governments in all sectors must respect and uphold the principles and
provisions of this policy and it would neither be appropriate nor possible
for the Union of India to adopt a different approach in the matter. Mr.
Asthana, who appears to have made an in-depth study of the matter,
submitted that on the question of making the provisions in the Juvenile
Justice (Care and Protection of Children) Act, 2000, conform to the
provisions of the Constitution and to allow the children of a specific age
group to be treated as adults, it would be appropriate to take note of
General Comment No.10 made by the U.N. Committee on the rights of the child
on 25th April, 2007, which specifically dealt with the upper age limit for
juveniles and it was reiterated that where it was a case of a child being
in need of care and protection or in conflict with law, every person under
the age of 18 years at the time of commission of the alleged offence must
be treated in accordance with the Juvenile Justice Rules. Mr. Asthana
submitted that any attempt to alter the upper limit of the age of a child
from 18 to 16 years would have disastrous consequences and would set back
the attempts made over the years to formulate a restorative and
rehabilitative approach mainly for juveniles in conflict with law.
34. In Writ Petition (Civil) No.85 of 2013, a counter affidavit has been
filed on behalf of the Ministry of Women and Child Development, Government
of India, in which the submissions made by the ASG, Mr. Siddharth Luthra,
were duly reflected. In paragraph I of the said affidavit, it has been
pointed out that the Juvenile Justice (Care and Protection of Children)
Act, 2000, provides for a wide range of reformative measures under Sections
15 and 16 for children in conflict with law – from simple warning to 3
years of institutionalisation in a Special Home. In exceptional cases,
provision has also been made for the juvenile to be sent to a place of
safety where intensive rehabilitation measures, such as counselling,
psychiatric evaluation and treatment would be undertaken.
35. In Writ Petition (C) No.10 of 2013 filed by Shri Salil Bali, an
application had been made by the Prayas Juvenile Aid Centre (JAC), a
Society whose Founder and General Secretary, Shri Amod Kanth, was allowed
to appear and address the Court in person. Mr. Amod Kanth claimed that he
was a former member of the Indian Police Service and Chairperson of the
Delhi Commission for the Protection of Child Rights and was also the
founder General Secretary of the aforesaid organisation, which came into
existence in 1998 as a special unit associated with the Missing Persons
Squad of the Crime and Railway Branch of the Delhi Police of which Shri
Amod Kanth was the in-charge Deputy Commissioner of Police. Mr. Amod Kanth
submitted that Prayas was created in order to identify and support the
missing and found persons, including girls, street migrants, homeless,
working and delinquent children who did not have any support from any
organisation in the Government or in the non-governmental organisation
sector.
36. Mr. Kanth repeated and reiterated the submissions made by the learned
ASG and Mr. Asthana and also highlighted the problems faced by children
both in conflict with law and in need of care and protection. Mr. Kanth
submitted that whatever was required to be done for the rehabilitation and
restoration of juveniles to a normal existence has, to a large extent, been
defeated since the various provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 and the Rules of 2007, were not being
seriously implemented. Mr. Kanth urged that after the ratification by
India of the United Nations Convention on the Rights of the Child on 11th
December, 1992, serious thought was given to the enactment of the Juvenile
Justice (Care and Protection of Children Act), 2000, which came to replace
the Juvenile Justice Act, 1986. Taking a leaf out of Mr. Asthana’s book,
Mr. Kanth submitted that even after thirteen years of its existence, the
provisions of the Juvenile Justice (Care and Protection of Children) Act,
2000, still remained unimplemented in major areas, which made it impossible
for the provisions of the Act to be properly coordinated. Mr. Kanth
submitted that one of the more important features of juvenile law was to
provide a child-friendly approach in the adjudication and disposition of
matters in the best interest of children and for their ultimate
rehabilitation through various institutions established under the Act.
Submitting that the Juvenile Justice (Care and Protection of Children) Act,
2000, was based on the provisions of the Indian Constitution, the United
Nations Convention on the Rights of the Child, 1989, the Beijing Rules and
the United Nations Rules for the Protection of the Juveniles Deprived of
their Liberty, 1990, Mr. Kanth urged that the same was in perfect harmony
with the provisions of the Constitution, but did not receive the attention
it ought to have received while dealing with a section of the citizens of
India comprising 42% of the country’s population.
37. Various measures to deal with juveniles in conflict with law have
been suggested by Mr. Kanth, which requires serious thought and avoidance
of knee-jerk reactions to situations which could set a dangerous trend and
affect millions of children in need of care and protection. Mr. Kanth
submitted that any change in the law, as it now stands, resulting in the
reduction of age to define a juvenile, will not only prove to be
regressive, but would also adversely affect India’s image as a champion of
human rights.
38. Having regard to the serious nature of the issues raised before us,
we have given serious thought to the submissions advanced on behalf of the
respective parties and also those advanced on behalf of certain Non-
Government Organizations and have also considered the relevant extracts
from the Report of Justice J.S. Verma Committee on “Amendments to the
Criminal Law” and are convinced that the Juvenile Justice (Care and
Protection of Children) Act, 2000, as amended in 2006, and the Juvenile
Justice (Care and Protection of Children) Rules, 2007, are based on sound
principles recognized internationally and contained in the provisions of
the Indian Constitution.
39. There is little doubt that the incident, which occurred on the night
of 16th December, 2012, was not only gruesome, but almost maniacal in its
content, wherein one juvenile, whose role is yet to be established, was
involved, but such an incident, in comparison to the vast number of crimes
occurring in India, makes it an aberration rather than the Rule. If what
has come out from the reports of the Crimes Record Bureau, is true, then
the number of crimes committed by juveniles comes to about 2% of the
country’s crime rate.
40. The learned ASG along with Mr. Asthana and Mr. Kanth, took us through
the history of the enactment of the Juvenile Justice (Care and Protection
of Children) Act, 2000, and the Rules subsequently framed thereunder in
2007. There is a definite thought process, which went into the enactment
of the aforesaid Act. In order to appreciate the submissions made on
behalf of the respective parties in regard to the enactment of the
aforesaid Act and the Rules, it may be appropriate to explore the
background of the laws relating to child protection in India and in the
rest of the world.
41. It cannot be questioned that children are amongst the most vulnerable
sections in any society. They represent almost one-third of the world’s
population, and unless they are provided with proper opportunities, the
opportunity of making them grow into responsible citizens of tomorrow will
slip out of the hands of the present generation. International community
has been alive to the problem for a long time. After the aftermath of the
First World War, the League of Nations issued the Geneva Declaration of the
Rights of the Child in 1924. Following the gross abuse and violence of
human rights during the Second World War, which caused the death of
millions of people, including children, the United Nations had been formed
in 1945 and on 10th December, 1948 adopted and proclaimed the Universal
Declaration of Human Rights. While Articles 1 and 7 of the Declaration
proclaimed that all human beings are born free and equal in dignity and
rights and are equal before the law, Article 25 of the Declaration
specifically provides that motherhood and childhood would be entitled to
special care and assistance. The growing consciousness of the world
community was further evidenced by the Declaration of the Rights of the
Child, which came to be proclaimed by the United Nations on 20th November,
1959, in the best interests of the child. This was followed by the Beijing
Rules of 1985, the Riyadh Guidelines of 1990, which specially provided
guidelines for the prevention of juvenile delinquency, and the Havana Rules
of 14th December, 1990. The said three sets of Rules intended that social
policies should be evolved and applied to prevent juvenile delinquency, to
establish a Juvenile Justice System for juveniles in conflict with law, to
safeguard fundamental rights and to establish methods for social re-
integration of young people who had suffered incarceration in prison or
other corrective institutions. One of the other principles which was
sought to be reiterated and adopted was that a juvenile should be dealt
with for an offence in a manner which is different from an adult. The
Beijing Rules indicated that efforts should be made by member countries to
establish within their own national jurisdiction, a set of laws and rules
specially applicable to juvenile offenders. It was stated that the age of
criminal responsibility in legal systems that recognize the concept of the
age of criminal responsibility for juveniles should not be fixed at too low
an age-level, keeping in mind the emotional, mental and intellectual
maturity of children.
42. Four years after the adoption of the Beijing Rules, the United
Nations adopted the Convention on the Rights of the Child vide the
Resolution of the General Assembly No. 44/25 dated 20th November, 1989,
which came into force on 2nd September, 1990. India is not only a
signatory to the said Convention, but has also ratified the same on 11th
December, 1992. The said Convention sowed the seeds of the enactment of
the Juvenile Justice (Care and Protection of Children) Act, 2000, by the
Indian Parliament.
43. India developed its own jurisprudence relating to children and the
recognition of their rights. With the adoption of the Constitution on 26th
November 1949, constitutional safeguards, as far as weaker sections of the
society, including children, were provided for. The Constitution has
guaranteed several rights to children, such as equality before the law,
free and compulsory primary education to children between the age group of
six to fourteen years, prohibition of trafficking and forced labour of
children and prohibition of employment of children below the age of
fourteen years in factories, mines or hazardous occupations. The
Constitution enables the State Governments to make special provisions for
children. To prevent female foeticide, the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act was enacted in
1994. One of the latest enactments by Parliament is the Protection of
Children from Sexual Offences Act, 2012.
44. The Juvenile Justice (Care and Protection of Children) Act, 2000, is
in tune with the provisions of the Constitution and the various
Declarations and Conventions adopted by the world community represented by
the United Nations. The basis of fixing of the age till when a person
could be treated as a child at eighteen years in the Juvenile Justice (Care
and Protection of Children) Act, 2000, was Article 1 of the Convention of
the Rights of the Child, as was brought to our notice during the hearing.
Of course, it has been submitted by Dr. Kishor that the description in
Article 1 of the Convention was a contradiction in terms. While generally
treating eighteen to be the age till which a person could be treated to be
a child, it also indicates that the same was variable where national laws
recognize the age of majority earlier. In this regard, one of the other
considerations which weighed with the legislation in fixing the age of
understanding at eighteen years is on account of the scientific data that
indicates that the brain continues to develop and the growth of a child
continues till he reaches at least the age of eighteen years and that it is
at that point of time that he can be held fully responsible for his
actions. Along with physical growth, mental growth is equally important,
in assessing the maturity of a person below the age of eighteen years. In
this connection, reference may be made to the chart provided by Mr. Kanth,
wherein the various laws relating to children generally recognize eighteen
years to be the age for reckoning a person as a juvenile/ child including
criminal offences.
45. In any event, in the absence of any proper data, it would not be wise
on our part to deviate from the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000, which represent the collective
wisdom of Parliament. It may not be out of place to mention that in the
Juvenile Justice Act, 1986, male children above the age of sixteen years
were considered to be adults, whereas girl children were treated as adults
on attaining the age of eighteen years. In the Juvenile Justice (Care and
Protection of Children) Act, 2000, a conscious decision was taken by
Parliament to raise the age of male juveniles/children to eighteen years.
46. In recent years, there has been a spurt in criminal activities by
adults, but not so by juveniles, as the materials produced before us show.
The age limit which was raised from sixteen to eighteen years in the
Juvenile Justice (Care and Protection of Children) Act, 2000, is a decision
which was taken by the Government, which is strongly in favour of retaining
Sections 2(k) and 2(l) in the manner in which it exists in the Statute
Book.
47. One misunderstanding of the law relating to the sentencing of
juveniles, needs to be corrected. The general understanding of a sentence
that can be awarded to a juvenile under Section 15(1)(g) of the Juvenile
Justice (Care and Protection of Children) Act, 2000, prior to its amendment
in 2006, is that after attaining the age of eighteen years, a juvenile who
is found guilty of a heinous offence is allowed to go free. Section
15(1)(g), as it stood before the amendment came into effect from 22nd
August, 2006, reads as follows:
“15(1)(g) make an order directing the juvenile to be sent to a
special home for a period of three years:
(i) in case of juvenile, over seventeen years but less than
eighteen years of age, for a period of not less than two years;
(ii) in case of any other juvenile for the period until he
ceases to be a juvenile:
Provided that the Board may, if it is satisfied that
having regard to the nature of the offence and the circumstances
of the case, it is expedient so to do, for reasons to be
recorded, reduce the period of stay to such period as it thinks
fit.”
It was generally perceived that a juvenile was free to go, even if he
had committed a heinous crime, when he ceased to be a juvenile.
The said understanding needs to be clarified on account of the
amendment which came into force with effect from 22.8.2006, as a result
whereof Section 15(1)(g) now reads as follows:
“Make an order directing the juvenile to be sent to a special
home for a period of three years:
Provided that the Board may if it is satisfied that having
regard to the nature of the offence and the circumstances of the
case, it is expedient so to do, for reasons to be recorded
reduce the period of stay to such period as it thinks fit.”
The aforesaid amendment now makes it clear that even if a juvenile
attains the age of eighteen years within a period of one year he would
still have to undergo a sentence of three years, which could spill beyond
the period of one year when he attained majority.
48. There is yet another consideration which appears to have weighed with
the worldwide community, including India, to retain eighteen as the upper
limit to which persons could be treated as children.
In the Bill brought
in Parliament for enactment of the Juvenile Justice (Care and Protection of
Children) Act of 2000, it has been indicated that the same was being
introduced to provide for the care, protection, treatment, development and
rehabilitation of neglected or delinquent juveniles and for the
adjudication of certain matters relating to and disposition of delinquent
juveniles.
The essence of the Juvenile Justice (Care and Protection of
Children) Act, 2000, and the Rules framed thereunder in 2007, is
restorative and not retributive, providing for rehabilitation and re-
integration of children in conflict with law into mainstream society.
The
age of eighteen has been fixed on account of the understanding of experts in child psychology and behavioural patterns that till such an age the children in conflict with law could still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future.
There are, of course, exceptions where a child in the age group of sixteen
to eighteen may have developed criminal propensities, which would make it
virtually impossible for him/her to be re-integrated into mainstream
society,
but such examples are not of such proportions as to warrant any
change in thinking, since it is probably better to try and re-integrate
children with criminal propensities into mainstream society, rather than to
allow them to develop into hardened criminals, which does not augur well
for the future.
49. This being the understanding of the Government behind the enactment
of the Juvenile Justice (Care and Protection of Children) Act, 2000, and
the amendments effected thereto in 2006, together with the Rules framed
thereunder in 2007, and the data available with regard to the commission of
heinous offences by children, within the meaning of Sections 2(k) and 2(l)
of the Juvenile Justice (Care and Protection of Children) Act, 2000, we do
not think that any interference is necessary with the provisions of the
Statute till such time as sufficient data is available to warrant any
change in the provisions of the aforesaid Act and the Rules. On the other
hand, the implementation of the various enactments relating to children,
would possibly yield better results.
50. The Writ Petitions and the Transferred Case are, therefore,
dismissed, with the aforesaid observations. There shall, however, be no
order as to costs.
…………………………………………………CJI.
(ALTAMAS KABIR)
………………………………………………………J.
(SURINDER SINGH NIJJAR)
………………………………………………………J.
(J. CHELAMESWAR)
New Delhi
Dated:July 17, 2013.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 10 OF 2013
1
2 SALIL BALI … PETITIONER
VS.
2 UNION OF INDIA & ANR. …
RESPONDENTS
WITH
W.P.(C)NOS.14, 42, 85, 90 and 182 OF 2013
WITH
W.P.(CRL)NO.6 OF 2013
AND
T.C.(C)No. 82 OF 2013
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Seven Writ Petitions and one Transferred Case have been taken up
together for consideration in view of the commonality of the grounds and
reliefs prayed for therein. While in Writ Petition (C) No. 14 of 2013,
Saurabh Prakash Vs. Union of India, and Writ Petition (C) No. 90 of 2013,
Vinay K. Sharma Vs. Union of India, a common prayer has been made for
declaration of the Juvenile Justice (Care and Protection of Children) Act, 2000, as ultra vires the Constitution,
in Writ Petition (C) No. 10 of 2013,
Salil Bali Vs. Union of India, Writ Petition (C) No. 85 of 2013, Krishna
Deo Prasad Vs. Union of India, Writ Petition (C) No. 42 of 2013, Kamal
Kumar Pandey & Sukumar Vs. Union of India and Writ Petition (C) No. 182 of
2013, Hema Sahu Vs. Union of India, a common prayer has inter alia been
made to strike down the provisions of Section 2(k) and (l) of the above
Act, along with a prayer to bring the said Act in conformity with the
provisions of the Constitution and to direct the Respondent No. 1 to take
steps to make changes in the Juvenile Justice (Care and Protection of
Children) Act, 2000, to bring it in line with the United Nations Standard
Minimum Rules for administration of juvenile justice. In addition to the
above, in Writ Petition (Crl.) No. 6 of 2013, Shilpa Arora Sharma Vs. Union
of India, a prayer has inter alia been made to appoint a panel of criminal
psychologists to determine through clinical methods whether the juvenile is
involved in the Delhi gang rape on 16.12.2012. Yet, another relief which
has been prayed for in common during the oral submissions made on behalf of
the Petitioners was that in offences like rape and murder, juveniles should
be tried under the normal law and not under the aforesaid Act and
protection granted to persons up to the age of 18 years under the aforesaid
Act may be removed and that the investigating agency should be permitted to
keep the record of the juvenile offenders to take preventive measures to
enable them to detect repeat offenders and to bring them to justice.
Furthermore, prayers have also been made in Writ Petition (Crl.) No. 6 of
2013 and Writ Petition (C) No. 85 of 2013, which are personal to the
juvenile accused in the Delhi gang rape case of 16.12.2012, not to release
him and to keep him in custody or any place of strict detention, after he
was found to be a mentally abnormal psychic person and that proper and
detailed investigation be conducted by the CBI to ascertain his correct age
by examining his school documents and other records and to further declare
that prohibition in Section 21 of the Juvenile Justice (Care and Protection
of Children) Act, 2000, be declared unconstitutional.
2. In most of the matters, the Writ Petitioners appeared in-person, in
support of their individual cases.
3. Writ Petition (C) No.10 of 2013, filed by Shri Salil Bali, was taken
up as the first matter in the bunch. The Petitioner appearing in-person
urged that it was necessary for the provisions of Section 2(k), 2(l) and 15
of the Juvenile Justice (Care and Protection of Children) Act, 2000, to be
reconsidered in the light of the spurt in criminal offences being committed
by persons within the range of 16 to 18 years, such as the gang rape of a
young woman inside a moving vehicle on 16th December, 2012, wherein along
with others, a juvenile, who had attained the age of 17½ years, was being
tried separately under the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000.
4. Mr. Bali submitted that the age of responsibility, as accepted in
India, is different from what has been accepted by other countries of the
world. But, Mr. Bali also pointed out that even in the criminal
jurisprudence prevalent in India, the age of responsibility of
understanding the consequences of one's actions had been recognized as 12
years in the Indian Penal Code. Referring to Section 82 of the Code, Mr.
Bali pointed out that the same provides that nothing is an offence which is
done by a child under seven years of age. Mr. Bali also referred to
Section 83 of the Code, which provides that nothing is an offence which is
done by a child above seven years of age and under twelve, who has not
attained sufficient maturity of understanding to judge the nature and
consequences of his conduct on a particular occasion. Mr. Bali, therefore,
urged that even under the Indian Criminal Jurisprudence the age of
understanding has been fixed at twelve years, which according to him, was
commensurate with the thinking of other countries, such as the United
States of America, Great Britain and Canada.
5. In regard to Canada, Mr. Bali referred to the Youth Criminal Justice
Act, 2003, as amended from time to time, where the age of criminal
responsibility has been fixed at twelve years. Referring to Section 13 of
the Criminal Code of Canada, Mr. Bali submitted that the same is in pari
materia with the provisions of Section 83 of the Indian Penal Code. In
fact, according to the Criminal Justice Delivery System in Canada, a youth
between the age of 14 to 17 years may be tried and sentenced as an adult in
certain situations. Mr. Bali also pointed out that even in Canada the
Youth Criminal Justice Act governs the application of criminal and
correctional law to those who are twelve years old or older, but younger
than 18 at the time of committing the offence, and that, although, trials
were to take place in a Youth Court, for certain offences and in certain
circumstances, a youth may be awarded an adult sentence.
6. Comparing the position in USA and the Juvenile Justice and
Delinquency Prevention Act, 1974, he urged that while in several States, no
set standards have been provided, reliance is placed on the common law age
of seven in fixing the age of criminal responsibility, the lowest being six
years in North Carolina. The general practice in the United States of
America, however, is that even for such children, the courts are entitled
to impose life sentences in respect of certain types of offences, but such
life sentences without parole were not permitted for those under the age of
eighteen years convicted of murder or offences involving violent crimes and
weapons violations.
7. In England and Wales, children accused of crimes are generally tried
under the Children and Young Persons Act, 1933, as amended by Section 16(1)
of the Children and Young Persons Act, 1963. Under the said laws, the
minimum age of criminal responsibility in England and Wales is ten years
and those below the said age are considered to be doli incapax and, thus,
incapable of having any mens rea, which is similar to the provisions of
Sections 82 and 83 of Indian Penal Code.
8. Mr. Bali has also referred to the legal circumstances prevailing in
other parts of the world wherein the age of criminal responsibility has
been fixed between ten to sixteen years. Mr. Bali contended that there was
a general worldwide concern over the rising graph of criminal activity of
juveniles below the age of eighteen years, which has been accepted
worldwide to be the age limit under which all persons were to be treated as
children. Mr. Bali sought to make a distinction in regard to the
definition of children as such in Sections 2(k) and 2(l) of the Juvenile
Justice (Care and Protection of Children) Act, 2000, and the level of
maturity of the child who is capable of understanding the consequences of
his actions. He, accordingly, urged that the provisions of Sections 15 and
16 of the Act needed to be reconsidered and appropriate orders were
required to be passed in regard to the level of punishment in respect of
heinous offences committed by children below the age of eighteen years,
such as murder, rape, dacoity, etc. Mr. Bali submitted that allowing
perpetrators of such crimes to get off with a sentence of three years at
the maximum, was not justified and a correctional course was required to be
undertaken in that regard.
9. Mr. Saurabh Prakash, Petitioner in Writ Petition (C) No. 14 of 2013,
also appeared in-person and, while endorsing the submissions made by Mr.
Bali, went a step further in suggesting that in view of the provisions of
Sections 15 and 16 of the Juvenile Justice (Care and Protection of
Children) Act, 2000, children, as defined in the above Act, were not only
taking advantage of the same, but were also being used by criminals for
their own ends. The Petitioner reiterated Mr. Bali's submission that after
being awarded a maximum sentence of three years, a juvenile convicted of
heinous offences, was almost likely to become a monster in society and pose
a great danger to others, in view of his criminal propensities. Although,
in the prayers to the Writ Petition, one of the reliefs prayed for was for
quashing the provisions of the entire Act, Mr. Saurabh Prakash ultimately
urged that some of the provisions thereof were such as could be segregated
and struck down so as to preserve the Act as a whole. The Petitioner urged
that, under Article 21 of the Constitution, every citizen has a fundamental
right to live in dignity and peace, without being subjected to violence by
other members of society and that by shielding juveniles, who were fully
capable of understanding the consequences of their actions, from the
sentences, as could be awarded under the Indian Penal Code, as far as
adults are concerned, the State was creating a class of citizens who were
not only prone to criminal activity, but in whose cases restoration or
rehabilitation was not possible. Mr. Saurabh Prakash submitted that the
provisions of Sections 15 and 16 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, violated the rights guaranteed to a
citizen under Article 21 of the Constitution and were, therefore, liable
to be struck down.
10. Mr. Saurabh Prakash also submitted that the provisions of Section 19
of the Act, which provided for removal of disqualification attaching to
conviction, were also illogical and were liable to be struck down. It was
submitted that in order to prevent repeated offences by an individual, it
was necessary to maintain the records of the inquiry conducted by the
Juvenile Justice Board, in relation to juveniles so that such records would
enable the authorities concerned to assess the criminal propensity of an
individual, which would call for a different approach to be taken at the
time of inquiry. Mr. Saurabh Prakash urged this Court to give a direction
to the effect that the Juvenile Justice Board or courts or other high
public authorities would have the discretion to direct that in a particular
case, the provisions of the general law would apply to a juvenile and not
those of the Act.
11. Mr. Vivek Narayan Sharma, learned Advocate, appeared for the
petitioner in Writ Petition (Crl.) No. 6 of 2013, filed by one Shilpa Arora
Sharma, and submitted that the Juvenile Justice Board should be vested with
the discretion to impose punishment beyond three years, as limited by
Section 15 of the Juvenile Justice (Care and Protection of Children) Act,
2000, in cases where a child, having full knowledge of the consequences of
his/her actions, commits a heinous offence punishable either with life
imprisonment or death. Mr. Sharma submitted that such a child did not
deserve to be treated as a child and be allowed to re-mingle in society,
particularly when the identity of the child is to be kept a secret under
Sections 19 and 21 of the Juvenile Justice (Care and Protection of
Children) Act, 2000. Mr. Sharma submitted that in many cases children
between the ages of sixteen to eighteen years were, in fact, being
exploited by adults to commit heinous offences who knew full well that the
punishment therefor would not exceed three years.
12. Mr. Sharma urged that without disturbing the other beneficient
provisions of the Juvenile Justice (Care and Protection of Children) Act,
2000, some of the gray areas pointed out could be addressed in such a
manner as would make the Juvenile Justice (Care and Protection of Children)
Act, 2000, more effective and prevent the misuse thereof.
13. In Writ Petition (C) No. 85 of 2013, filed by Krishna Deo Prasad, Dr.
R.R. Kishor appeared for the Petitioner and gave a detailed account of the
manner in which the Juvenile Justice Delivery System had evolved.
Referring to the doctrine of doli incapax, rebuttable presumption and adult
responsibility, Dr. Kishor contended that even Article 1 of the UN
Convention on the Rights of the Child defines a child in the following
terms:
“Article 1
For the purposes of the present Convention, a child means every
human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier.”
14. Dr. Kishor contended that, as pointed out by Mr. Salil Bali, the
expression “child” has been defined in various ways in different countries
all over the world. Accordingly, the definition of a child in Section 2(k)
of the Juvenile Justice (Care and Protection of Children) Act, 2000, would
depend on the existing laws in India defining a child. Dr. Kishor referred
to the provisions of the Child Labour (Prohibition and Regulation) Act,
1986, as an example, to indicate that children up to the age of fourteen
years were treated differently from children between the ages of fourteen
to eighteen, for the purposes of employment in hazardous industries. Dr.
Kishor re-asserted the submissions made by Mr. Bali and Mr. Saurabh
Prakash, in regard to heinous crimes committed by children below the age of
eighteen years, who were capable of understanding the consequences of their
acts.
15. Dr. Kishor also referred to the provisions of Sections 82 and 83 of
the Indian Penal Code, where the age of responsibility and comprehension
has been fixed at twelve years and below. Learned counsel submitted that
having regard to the above-mentioned provisions, it would have to be
seriously considered as to whether the definition of a child in the
Juvenile Justice (Care and Protection of Children) Act, 2000, required
reconsideration. He urged that because a person under the age of 18 years
was considered to be a child, despite his or her propensity to commit
criminal offences, which are of a heinous and even gruesome nature, such as
offences punishable under Sections 376, 307, 302, 392, 396, 397 and 398
IPC, the said provisions have been misused and exploited by criminals and
people having their own scores to settle. Dr. Kishor urged that the
definition of a “juvenile” or a “child” or a “juvenile in conflict with
law”, in Sections 2(k) and 2(l) of the Juvenile Justice (Care and
Protection of Children) Act, 2000, was liable to be struck down and
replaced with a more meaningful definition, which would exclude such
juveniles.
16. Mr. Vikram Mahajan, learned Senior Advocate appearing for the
Petitioner, Vinay K. Sharma, in Writ Petition (C) No. 90 of 2013, urged
that the right given to a citizen of India under Article 21 of the
Constitution is impinged upon by the Juvenile Justice (Care and Protection
of Children) Act, 2000. Mr. Mahajan urged that the Juvenile Justice (Care
and Protection of Children) Act, 2000, operates in violation of Articles 14
and 21 of the Constitution and that Article 13(2), which relates to post
Constitution laws, prohibits the State from making a law which either takes
away totally or abrogates in part a fundamental right. Referring to the
United Nations Declaration on the Elimination of Violence against Women,
adopted by the General Assembly on 20th December, 1993, Mr. Mahajan pointed
out that Article 1 of the Convention describes “violence against women” to
mean any act of gender-based violence that results in, or is likely to
result in, physical, sexual or psychological harm or suffering to women.
Referring to the alleged gang rape of a 23 year old para-medical student,
in a moving bus, in Delhi, on 16th December, 2012, Mr. Mahajan tried to
indicate that crimes committed by juveniles had reached large and serious
proportions and that there was a need to amend the law to ensure that such
persons were not given the benefit of lenient punishment, as contemplated
under Section 15 of the Juvenile Justice (Care and Protection of Children)
Act, 2000. From the figures cited by him, he urged that even going by
statistics, 1% of the total number of crimes committed in the country would
amount to a large number and the remedy to such a problem would lie in the
Probation of Offenders Act, 1958, which made the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000, redundant and ultra
vires Article 21 of the Constitution.
17. Ms. Shweta Kapoor appeared in Transferred Case No. 82 of 2013 in-
person and questioned the vires of Sections 16(1), 19(1), 49(2) and
52(2)(a) of the Juvenile Justice (Care and Protection of Children) Act,
2000, and submitted that they were liable to be declared as ultra vires the
Constitution. Referring to Section 16 of the aforesaid Act, Ms. Kapoor
submitted that even in the proviso to Sub-section (1) of Section 16,
Parliament had recognized the distinction between a juvenile, who had
attained the age of sixteen years, but had committed an offence which was
so serious in nature that it would not be in his interest or in the
interest of other juveniles in a special home, to send him to such special
home. Considering that none of the other measures provided under the Act
was suitable or sufficient, the Government had empowered the Board to pass
an order for the juvenile to be kept in such place of safety and in such
manner as it thought fit. Ms. Kapoor submitted that no objection could be
taken to the said provision except for the fact that in the proviso to
Section 16(2), it has been added that the period of detention order would
not exceed, in any case, the maximum limit of punishment, as provided under
Section 15, which is three years.
18. Ms. Kapoor contended that while the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000, are generally meant
for the benefit of the juvenile offenders, a serious attempt would have to
be made to grade the nature of offences to suit the reformation
contemplated by the Act.
19. As part of her submissions, Ms. Kapoor referred to the decision of
this Court in Avishek Goenka Vs. Union of India [(2012) 5 SCC 321], wherein
the pasting of black films on glass panes were banned by this Court on
account of the fact that partially opaque glass panes on vehicles acted as
facilitators of crime. Ms. Kapoor urged that in the opening paragraph of
the judgment, it has been observed that “Alarming rise in heinous crimes
like kidnapping, sexual assault on women and dacoity have impinged upon the
right to life and the right to live in a safe environment which are within
the contours of Article 21 of the Constitution of India”. Ms. Kapoor also
referred to another decision of this Court in Abuzar Hossain Vs. State of
West Bengal [(2012) 10 SCC 489], which dealt with a different question
regarding the provisions of Section 7A of the Juvenile Justice (Care and
Protection of Children) Act, 2000, and the right of an accused to raise the
claim of juvenility at any stage of the proceedings and even after the
final disposal of the case.
20. In conclusion, Ms. Kapoor reiterated her stand that in certain cases
the definition of a juvenile in Sections 2(k) and 2(l) of the Juvenile
Justice (Care and Protection of Children) Act, 2000, would have to be
considered differently.
21. The next matter which engaged our attention is Writ Petition (Civil)
No.90 of 2013 filed by one Vinay Kumar Sharma, praying for a declaration
that the Juvenile Justice (Care and Protection of Children) Act, 2000, be
declared ultra vires the Constitution and that children should also be
tried along with adults under the penal laws applicable to adults.
22. Writ Petition (Civil) No.42 of 2013 has been filed by Kamal Kumar
Pandey and Sukumar, Advocates, inter alia, for an appropriate writ or
direction declaring the provisions of Sections 2(1), 10 and 17 of the
Juvenile Justice (Care and Protection of Children) Act, 2000, to be
irrational, arbitrary, without reasonable nexus and thereby ultra vires and
unconstitutional, and for a Writ of Mandamus commanding the Ministry of
Home Affairs and the Ministry of Law and Justice, Government of India, to
take steps that the aforesaid Act operates in conformity with the
Constitution. In addition, a prayer was made to declare the provisions of
Sections 15 and 19 of the above Act ultra vires the Constitution.
23. The main thrust of the argument advanced by Mr. Pandey, who appeared
in person, was the inter-play between International Conventions and Rules,
such as the Beijing Rules, 1985, the U.N. Convention on the Rights of the
Child, 1989, and the Juvenile Justice (Care and Protection of Children)
Act, 2000. While admitting the salubirous and benevolent and progressive
character of the legislation in dealing with children in need of care and
protection and with children in conflict with law, Mr. Pandey contended
that a distinction was required to be made in respect of children with a
propensity to commit heinous crimes which were a threat to a peaceful
social order. Mr. Pandey reiterated the submissions made earlier that it
was unconstitutional to place all juveniles, irrespective of the gravity of
the offences, in one bracket. Urging that Section 2(l) of the Juvenile
Justice (Care and Protection of Children) Act, 2000, ought not to have
placed all children in conflict with law within the same bracket, Mr.
Pandey submitted that the same is ultra vires Article 21 of the
Constitution. Referring to the report of the National Crime Records Bureau
(NCRB) for the years 2001 to 2011, Mr. Pandey submitted that between 2001
and 2011, the involvement of juveniles in cognizable crimes was on the
rise. Mr. Pandey urged that it was a well-established medical-
psychological fact that the level of understanding of a 16 year-old was at
par with that of adults.
24. Mr. Pandey's next volley was directed towards Section 19 of the
Juvenile Justice (Care and Protection of Children) Act, 2000, which
provides for the removal of any disqualification attached to an offence of
any nature. Mr. Pandey submitted that the said provisions do not take into
account the fact relating to repeated offences being perpetrated by a
juvenile whose records of previous offences are removed. Mr. Pandey
contended that Section 19 of the Act was required to be amended to enable
the concerned authorities to retain records of previous offences committed
by a juvenile for the purposes of identification of a juvenile with a
propensity to repeatedly commit offences of a grievous or heinous nature.
25. Mr. Pandey submitted that Parliament had exceeded its mandate by
blindly adopting eighteen as the upper limit in categorising a juvenile or
a child, in accordance with the Beijing Rules, 1985, and the U.N.
Convention, 1989, without taking into account the socio-cultural economic
conditions and the legal system for administration of criminal justice in
India. Mr. Pandey urged that the Juvenile Justice (Care and Protection of
Children) Act, 2000, was required to operate in conformity with the
provisions of the Constitution of India.
26. Ms. Hema Sahu, the petitioner in Writ Petition (Civil) No. 182 of
2013, also appeared in person and restated the views expressed by the other
petitioners that the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, commonly known as the “Beijing Rules”,
recognized and noted the difference in the nature of offences committed by
juveniles in conflict with law. Referring to the decision of this Court in
the case commonly known as the “Bombay Blasts Case”, Ms. Sahu submitted
that a juvenile who was tried and convicted along with adults under the
Terrorist and Disruptive Activities Act (TADA), was denied the protection
of the Juvenile Justice (Care and Protection of Children) Act, 2000, on
account of the serious nature of the offence. Ms. Sahu ended on the note
that paragraph 4 of the 1989 Convention did not make any reference to age.
27. Appearing for the Union of India, the Additional Solicitor General,
Mr. Siddharth Luthra, strongly opposed the submissions made on behalf of
the Petitioners to either declare the entire Juvenile Justice (Care and
Protection of Children) Act, 2000, as ultra vires the Constitution or parts
thereof, such as Sections 2(k), 2(l), 15, 16, 17, 19 and 21. After
referring to the aforesaid provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000, the learned ASG submitted that
Parliament consciously fixed eighteen years as the upper age limit for
treating persons as juveniles and children, taking into consideration the
general trend of legislation, not only internationally, but within the
country as well.
28. The learned ASG submitted that the Juvenile Justice (Care and
Protection of Children) Act, 2000, was enacted after years of deliberation
and in conformity with international standards as laid down in the U.N.
Convention on the Rights of the Child, 1989, the Beijing Rules, 1985, the
Havana Rules and other international instruments for securing the best
interests of the child with the primary object of social reintegration of
child victims and children in conflict with law, without resorting to
conventional judicial proceedings which existed for adult criminals. In
the course of his submissions, the learned ASG submitted a chart of the
various Indian statutes and the manner in which children have been excluded
from liability under the said Acts upto the age of 18 years. In most of the
said enactments, a juvenile/child has been referred to a person who is
below 18 years of age. The learned ASG submitted that in pursuance of
international obligations, the Union of India after due deliberation had
taken a conscious policy decision to fix the age of a child/juvenile at the
upper limit of 18 years. The learned ASG urged that the fixing of the age
when a child ceases to be a child at 18 years is a matter of policy which
could not be questioned in a court of law, unless the same could be shown
to have violated any of the fundamental rights, and in particular Articles
14 and 21 of the Constitution. Referring to the decision of this Court in
BALCO Employees Union Vs. Union of India [(2002) 2 SCC 333], the learned
ASG submitted that at paragraph 46 of the said judgment it had been
observed that it is neither within the domain of the Courts nor the scope
of judicial review to embark upon an enquiry as to whether a particular
public policy was wise or whether something better could be evolved. It was
further observed that the Courts were reluctant to strike down a policy at
the behest of a Petitioner merely because it has been urged that a
different policy would have been fairer or wiser or more scientific or more
logical. The learned ASG further urged that Article 15(3) of the
Constitution empowers the State to enact special provisions for women and
children, which reveals that the Juvenile Justice (Care and Protection of
Children) Act, 2000, was in conformity with the provisions of the
Constitution.
29. The learned ASG submitted that in various judgments, this Court and
the High Courts had recognised the fact that juveniles were required to be
treated differently from adults so as to give such children, who for some
reason had gone astray, an opportunity to realize their mistakes and to
rehabilitate themselves and rebuild their lives. Special mention was made
with regard to the decision of this Court in Abuzar Hossain (supra) in this
regard. The learned ASG also referred to the decision of this Court in
State of Tamil Nadu Vs. K. Shyam Sunder [(2011) 8 SCC 737], wherein it had
been observed that merely because the law causes hardships or sometimes
results in adverse consequences, it cannot be held to be ultra vires the
Constitution, nor can it be struck down. The learned ASG also submitted
that it was now well-settled that reasonable classification is permissible
so long as such classification has a rational nexus with the object sought
to be achieved. This Court has always held that the presumption is always
in favour of the constitutionality of an enactment, since it has to be
assumed that the legislature understands and correctly appreciates the
needs of its own people and its discriminations are based on adequate
grounds.
30. Referring to the Reports of the National Crime Reports Bureau,
learned ASG pointed out that the percentage of increase in the number of
offences committed by juveniles was almost negligible and the general
public perception in such matters was entirely erroneous. In fact, the
learned ASG pointed out that even the Committee appointed to review the
amendments to the criminal law, headed by former CJI, J.S. Verma, in its
report submitted on 23rd January, 2013, did not recommend the reduction in
the age of juveniles in conflict with law and has maintained it at 18
years. The learned ASG pointed out that the issue of reduction in the age
of juveniles from 18 to 16 years, as it was in the Juveniles Justice Act of
1986, was also raised in the Lok Sabha on 19th March, 2013, during the
discussion on the Criminal Law (Amendment) Bill, 2013, but was rejected by
the House.
31. The learned ASG submitted that the occurrence of 16th December, 2012,
involving the alleged gang rape of a 23 year old girl, should not be
allowed to colour the decision taken to treat all persons below the age of
18 years, as children.
32. Mr. Anant Asthana, learned Advocate appearing for HAQ : Centre for
Child Rights, submitted that the Juvenile Justice (Care and Protection of
Children) Act, 2000, as amended in 2006 and 2011, is a fairly progressive
legislation, largely compliant with the Constitution of India and the
minimum standards contained in the Beijing Rules. Mr. Asthana contended
that the reason for incidents such as the 16th December, 2012, incident,
was not on account of the provisions of the aforesaid Act, but on account
of failure of the administration in implementing its provisions. Learned
counsel submitted that all the Writ Petitions appeared to be based on two
assumptions, namely, (i) that the age of 18 years for juveniles is set
arbitrarily; and (ii) that by reducing the age for the purpose of defining
a child in the aforesaid Act, criminality amongst children would reduce.
Mr. Asthana submitted that such an approach was flawed as it had been
incorrectly submitted that the age of 18 years to treat persons as children
was set arbitrarily and that it is so difficult to comprehend the causes
and the environment which brings children into delinquency. Mr. Asthana
submitted that the answer lies in effective and sincere implementation of
the different laws aimed at improving the conditions of children in need of
care and protection and providing such protection to children at risk. Mr.
Asthana urged that the objective with which the Juvenile Justice (Care and
Protection of Children) Act, 2000, was enacted was not aimed at delivering
retributive justice, but to allow a rehabilitative, reformation-oriented
approach in addressing juvenile crimes. Learned counsel submitted that the
apathy of the administration towards juveniles and the manner in which they
are treated would be evident from the fact that by falsifying the age of
juveniles, they were treated as adults and sent to jails, instead of being
produced before the Juvenile Justice Board or even before the Child
Welfare Committees to be dealt with in a manner provided by the Juvenile
Justice (Care and Protection of Children) Act, 2000, for the treatment of
juveniles.
33. Mr. Asthana submitted that even as recently as 26th April, 2013, the
Government of India has adopted a new National Policy for Children, which
not only recognises that a child is any person below the age of eighteen
years, but also states that the policy was to guide and inform people of
laws, policies, plans and programmes affecting children. Mr. Asthana urged
that all actions and initiatives of the national, State and local
Governments in all sectors must respect and uphold the principles and
provisions of this policy and it would neither be appropriate nor possible
for the Union of India to adopt a different approach in the matter. Mr.
Asthana, who appears to have made an in-depth study of the matter,
submitted that on the question of making the provisions in the Juvenile
Justice (Care and Protection of Children) Act, 2000, conform to the
provisions of the Constitution and to allow the children of a specific age
group to be treated as adults, it would be appropriate to take note of
General Comment No.10 made by the U.N. Committee on the rights of the child
on 25th April, 2007, which specifically dealt with the upper age limit for
juveniles and it was reiterated that where it was a case of a child being
in need of care and protection or in conflict with law, every person under
the age of 18 years at the time of commission of the alleged offence must
be treated in accordance with the Juvenile Justice Rules. Mr. Asthana
submitted that any attempt to alter the upper limit of the age of a child
from 18 to 16 years would have disastrous consequences and would set back
the attempts made over the years to formulate a restorative and
rehabilitative approach mainly for juveniles in conflict with law.
34. In Writ Petition (Civil) No.85 of 2013, a counter affidavit has been
filed on behalf of the Ministry of Women and Child Development, Government
of India, in which the submissions made by the ASG, Mr. Siddharth Luthra,
were duly reflected. In paragraph I of the said affidavit, it has been
pointed out that the Juvenile Justice (Care and Protection of Children)
Act, 2000, provides for a wide range of reformative measures under Sections
15 and 16 for children in conflict with law – from simple warning to 3
years of institutionalisation in a Special Home. In exceptional cases,
provision has also been made for the juvenile to be sent to a place of
safety where intensive rehabilitation measures, such as counselling,
psychiatric evaluation and treatment would be undertaken.
35. In Writ Petition (C) No.10 of 2013 filed by Shri Salil Bali, an
application had been made by the Prayas Juvenile Aid Centre (JAC), a
Society whose Founder and General Secretary, Shri Amod Kanth, was allowed
to appear and address the Court in person. Mr. Amod Kanth claimed that he
was a former member of the Indian Police Service and Chairperson of the
Delhi Commission for the Protection of Child Rights and was also the
founder General Secretary of the aforesaid organisation, which came into
existence in 1998 as a special unit associated with the Missing Persons
Squad of the Crime and Railway Branch of the Delhi Police of which Shri
Amod Kanth was the in-charge Deputy Commissioner of Police. Mr. Amod Kanth
submitted that Prayas was created in order to identify and support the
missing and found persons, including girls, street migrants, homeless,
working and delinquent children who did not have any support from any
organisation in the Government or in the non-governmental organisation
sector.
36. Mr. Kanth repeated and reiterated the submissions made by the learned
ASG and Mr. Asthana and also highlighted the problems faced by children
both in conflict with law and in need of care and protection. Mr. Kanth
submitted that whatever was required to be done for the rehabilitation and
restoration of juveniles to a normal existence has, to a large extent, been
defeated since the various provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 and the Rules of 2007, were not being
seriously implemented. Mr. Kanth urged that after the ratification by
India of the United Nations Convention on the Rights of the Child on 11th
December, 1992, serious thought was given to the enactment of the Juvenile
Justice (Care and Protection of Children Act), 2000, which came to replace
the Juvenile Justice Act, 1986. Taking a leaf out of Mr. Asthana’s book,
Mr. Kanth submitted that even after thirteen years of its existence, the
provisions of the Juvenile Justice (Care and Protection of Children) Act,
2000, still remained unimplemented in major areas, which made it impossible
for the provisions of the Act to be properly coordinated. Mr. Kanth
submitted that one of the more important features of juvenile law was to
provide a child-friendly approach in the adjudication and disposition of
matters in the best interest of children and for their ultimate
rehabilitation through various institutions established under the Act.
Submitting that the Juvenile Justice (Care and Protection of Children) Act,
2000, was based on the provisions of the Indian Constitution, the United
Nations Convention on the Rights of the Child, 1989, the Beijing Rules and
the United Nations Rules for the Protection of the Juveniles Deprived of
their Liberty, 1990, Mr. Kanth urged that the same was in perfect harmony
with the provisions of the Constitution, but did not receive the attention
it ought to have received while dealing with a section of the citizens of
India comprising 42% of the country’s population.
37. Various measures to deal with juveniles in conflict with law have
been suggested by Mr. Kanth, which requires serious thought and avoidance
of knee-jerk reactions to situations which could set a dangerous trend and
affect millions of children in need of care and protection. Mr. Kanth
submitted that any change in the law, as it now stands, resulting in the
reduction of age to define a juvenile, will not only prove to be
regressive, but would also adversely affect India’s image as a champion of
human rights.
38. Having regard to the serious nature of the issues raised before us,
we have given serious thought to the submissions advanced on behalf of the
respective parties and also those advanced on behalf of certain Non-
Government Organizations and have also considered the relevant extracts
from the Report of Justice J.S. Verma Committee on “Amendments to the
Criminal Law” and are convinced that the Juvenile Justice (Care and
Protection of Children) Act, 2000, as amended in 2006, and the Juvenile
Justice (Care and Protection of Children) Rules, 2007, are based on sound
principles recognized internationally and contained in the provisions of
the Indian Constitution.
39. There is little doubt that the incident, which occurred on the night
of 16th December, 2012, was not only gruesome, but almost maniacal in its
content, wherein one juvenile, whose role is yet to be established, was
involved, but such an incident, in comparison to the vast number of crimes
occurring in India, makes it an aberration rather than the Rule. If what
has come out from the reports of the Crimes Record Bureau, is true, then
the number of crimes committed by juveniles comes to about 2% of the
country’s crime rate.
40. The learned ASG along with Mr. Asthana and Mr. Kanth, took us through
the history of the enactment of the Juvenile Justice (Care and Protection
of Children) Act, 2000, and the Rules subsequently framed thereunder in
2007. There is a definite thought process, which went into the enactment
of the aforesaid Act. In order to appreciate the submissions made on
behalf of the respective parties in regard to the enactment of the
aforesaid Act and the Rules, it may be appropriate to explore the
background of the laws relating to child protection in India and in the
rest of the world.
41. It cannot be questioned that children are amongst the most vulnerable
sections in any society. They represent almost one-third of the world’s
population, and unless they are provided with proper opportunities, the
opportunity of making them grow into responsible citizens of tomorrow will
slip out of the hands of the present generation. International community
has been alive to the problem for a long time. After the aftermath of the
First World War, the League of Nations issued the Geneva Declaration of the
Rights of the Child in 1924. Following the gross abuse and violence of
human rights during the Second World War, which caused the death of
millions of people, including children, the United Nations had been formed
in 1945 and on 10th December, 1948 adopted and proclaimed the Universal
Declaration of Human Rights. While Articles 1 and 7 of the Declaration
proclaimed that all human beings are born free and equal in dignity and
rights and are equal before the law, Article 25 of the Declaration
specifically provides that motherhood and childhood would be entitled to
special care and assistance. The growing consciousness of the world
community was further evidenced by the Declaration of the Rights of the
Child, which came to be proclaimed by the United Nations on 20th November,
1959, in the best interests of the child. This was followed by the Beijing
Rules of 1985, the Riyadh Guidelines of 1990, which specially provided
guidelines for the prevention of juvenile delinquency, and the Havana Rules
of 14th December, 1990. The said three sets of Rules intended that social
policies should be evolved and applied to prevent juvenile delinquency, to
establish a Juvenile Justice System for juveniles in conflict with law, to
safeguard fundamental rights and to establish methods for social re-
integration of young people who had suffered incarceration in prison or
other corrective institutions. One of the other principles which was
sought to be reiterated and adopted was that a juvenile should be dealt
with for an offence in a manner which is different from an adult. The
Beijing Rules indicated that efforts should be made by member countries to
establish within their own national jurisdiction, a set of laws and rules
specially applicable to juvenile offenders. It was stated that the age of
criminal responsibility in legal systems that recognize the concept of the
age of criminal responsibility for juveniles should not be fixed at too low
an age-level, keeping in mind the emotional, mental and intellectual
maturity of children.
42. Four years after the adoption of the Beijing Rules, the United
Nations adopted the Convention on the Rights of the Child vide the
Resolution of the General Assembly No. 44/25 dated 20th November, 1989,
which came into force on 2nd September, 1990. India is not only a
signatory to the said Convention, but has also ratified the same on 11th
December, 1992. The said Convention sowed the seeds of the enactment of
the Juvenile Justice (Care and Protection of Children) Act, 2000, by the
Indian Parliament.
43. India developed its own jurisprudence relating to children and the
recognition of their rights. With the adoption of the Constitution on 26th
November 1949, constitutional safeguards, as far as weaker sections of the
society, including children, were provided for. The Constitution has
guaranteed several rights to children, such as equality before the law,
free and compulsory primary education to children between the age group of
six to fourteen years, prohibition of trafficking and forced labour of
children and prohibition of employment of children below the age of
fourteen years in factories, mines or hazardous occupations. The
Constitution enables the State Governments to make special provisions for
children. To prevent female foeticide, the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act was enacted in
1994. One of the latest enactments by Parliament is the Protection of
Children from Sexual Offences Act, 2012.
44. The Juvenile Justice (Care and Protection of Children) Act, 2000, is
in tune with the provisions of the Constitution and the various
Declarations and Conventions adopted by the world community represented by
the United Nations. The basis of fixing of the age till when a person
could be treated as a child at eighteen years in the Juvenile Justice (Care
and Protection of Children) Act, 2000, was Article 1 of the Convention of
the Rights of the Child, as was brought to our notice during the hearing.
Of course, it has been submitted by Dr. Kishor that the description in
Article 1 of the Convention was a contradiction in terms. While generally
treating eighteen to be the age till which a person could be treated to be
a child, it also indicates that the same was variable where national laws
recognize the age of majority earlier. In this regard, one of the other
considerations which weighed with the legislation in fixing the age of
understanding at eighteen years is on account of the scientific data that
indicates that the brain continues to develop and the growth of a child
continues till he reaches at least the age of eighteen years and that it is
at that point of time that he can be held fully responsible for his
actions. Along with physical growth, mental growth is equally important,
in assessing the maturity of a person below the age of eighteen years. In
this connection, reference may be made to the chart provided by Mr. Kanth,
wherein the various laws relating to children generally recognize eighteen
years to be the age for reckoning a person as a juvenile/ child including
criminal offences.
45. In any event, in the absence of any proper data, it would not be wise
on our part to deviate from the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000, which represent the collective
wisdom of Parliament. It may not be out of place to mention that in the
Juvenile Justice Act, 1986, male children above the age of sixteen years
were considered to be adults, whereas girl children were treated as adults
on attaining the age of eighteen years. In the Juvenile Justice (Care and
Protection of Children) Act, 2000, a conscious decision was taken by
Parliament to raise the age of male juveniles/children to eighteen years.
46. In recent years, there has been a spurt in criminal activities by
adults, but not so by juveniles, as the materials produced before us show.
The age limit which was raised from sixteen to eighteen years in the
Juvenile Justice (Care and Protection of Children) Act, 2000, is a decision
which was taken by the Government, which is strongly in favour of retaining
Sections 2(k) and 2(l) in the manner in which it exists in the Statute
Book.
47. One misunderstanding of the law relating to the sentencing of
juveniles, needs to be corrected. The general understanding of a sentence
that can be awarded to a juvenile under Section 15(1)(g) of the Juvenile
Justice (Care and Protection of Children) Act, 2000, prior to its amendment
in 2006, is that after attaining the age of eighteen years, a juvenile who
is found guilty of a heinous offence is allowed to go free. Section
15(1)(g), as it stood before the amendment came into effect from 22nd
August, 2006, reads as follows:
“15(1)(g) make an order directing the juvenile to be sent to a
special home for a period of three years:
(i) in case of juvenile, over seventeen years but less than
eighteen years of age, for a period of not less than two years;
(ii) in case of any other juvenile for the period until he
ceases to be a juvenile:
Provided that the Board may, if it is satisfied that
having regard to the nature of the offence and the circumstances
of the case, it is expedient so to do, for reasons to be
recorded, reduce the period of stay to such period as it thinks
fit.”
It was generally perceived that a juvenile was free to go, even if he
had committed a heinous crime, when he ceased to be a juvenile.
The said understanding needs to be clarified on account of the
amendment which came into force with effect from 22.8.2006, as a result
whereof Section 15(1)(g) now reads as follows:
“Make an order directing the juvenile to be sent to a special
home for a period of three years:
Provided that the Board may if it is satisfied that having
regard to the nature of the offence and the circumstances of the
case, it is expedient so to do, for reasons to be recorded
reduce the period of stay to such period as it thinks fit.”
The aforesaid amendment now makes it clear that even if a juvenile
attains the age of eighteen years within a period of one year he would
still have to undergo a sentence of three years, which could spill beyond
the period of one year when he attained majority.
48. There is yet another consideration which appears to have weighed with
the worldwide community, including India, to retain eighteen as the upper
limit to which persons could be treated as children.
In the Bill brought
in Parliament for enactment of the Juvenile Justice (Care and Protection of
Children) Act of 2000, it has been indicated that the same was being
introduced to provide for the care, protection, treatment, development and
rehabilitation of neglected or delinquent juveniles and for the
adjudication of certain matters relating to and disposition of delinquent
juveniles.
The essence of the Juvenile Justice (Care and Protection of
Children) Act, 2000, and the Rules framed thereunder in 2007, is
restorative and not retributive, providing for rehabilitation and re-
integration of children in conflict with law into mainstream society.
The
age of eighteen has been fixed on account of the understanding of experts in child psychology and behavioural patterns that till such an age the children in conflict with law could still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future.
There are, of course, exceptions where a child in the age group of sixteen
to eighteen may have developed criminal propensities, which would make it
virtually impossible for him/her to be re-integrated into mainstream
society,
but such examples are not of such proportions as to warrant any
change in thinking, since it is probably better to try and re-integrate
children with criminal propensities into mainstream society, rather than to
allow them to develop into hardened criminals, which does not augur well
for the future.
49. This being the understanding of the Government behind the enactment
of the Juvenile Justice (Care and Protection of Children) Act, 2000, and
the amendments effected thereto in 2006, together with the Rules framed
thereunder in 2007, and the data available with regard to the commission of
heinous offences by children, within the meaning of Sections 2(k) and 2(l)
of the Juvenile Justice (Care and Protection of Children) Act, 2000, we do
not think that any interference is necessary with the provisions of the
Statute till such time as sufficient data is available to warrant any
change in the provisions of the aforesaid Act and the Rules. On the other
hand, the implementation of the various enactments relating to children,
would possibly yield better results.
50. The Writ Petitions and the Transferred Case are, therefore,
dismissed, with the aforesaid observations. There shall, however, be no
order as to costs.
…………………………………………………CJI.
(ALTAMAS KABIR)
………………………………………………………J.
(SURINDER SINGH NIJJAR)
………………………………………………………J.
(J. CHELAMESWAR)
New Delhi
Dated:July 17, 2013.
