Juvenile Justice Act - Delhi Rape case - one of the Accused is a juvenile -Challenging the provision of JJ Act- third parties and victim Girl parents filed petitions and writs - challenging the Act and trial of Juvenile under JJ Act - Apex court dismissed all the cases =
On 16th December, 2012 a young lady (23 years in age) and her friend
were returning home after watching a movie in a multiplex located in one of
the glittering malls of Delhi. They boarded a bus to undertake a part of
the journey back home. While the bus was moving, 5 persons brutally
assaulted the young lady, sexually and physically, and also her friend.
Both of them were thrown out of the bus. The young lady succumbed to her
injuries on 29.12.2012. =
One of
them, identified for the purpose of the present case as Raju, was below 18
years of age on the date of commission of the crime. Accordingly, in
compliance with the provisions of the Juvenile Justice Act, 2000 ( as
amended and hereinafter referred to as ‘the Act’) his case was referred for
inquiry to the Juvenile Justice Board. =
Before the Juvenile Justice Board to whom the case of Raju was
referred for inquiry, the petitioners had filed applications for their
impleadment to enable them to ‘prosecute’ the juvenile alongside the public
prosecutor. =
whether the
offence(s) allegedly committed by the juvenile is to be inquired into by
the Board or the juvenile is required to be tried in a regular criminal
court is concerned, the Board had expressed its inability to decide the
same and had directed the petitioners to seek a authoritative pronouncement
on the said issue(s) from the High Court.=
This writ petition has been filed by the parents of the victim of the
incident that had occurred on 16.12.2012 seeking the following reliefs :
“(i) a Direction striking down as unconstitutional and void the
Juvenile Justice (Care and Protection of Children) Act 2000 (Act No.56
of 2000) to the extent it puts a blanket ban on the power of the
criminal courts to try a juvenile offender for offences committed
under the Indian Penal Code, 1860; and
(ii) a Direction that the Respondent No.2 be tried forthwith by
the competent criminal court for the offences against the daughter of
the petitioners in F.I.R. No.413/12, P.S. Vasant Vihar, New Delhi
under sections 302/365/376(2)G/377/307/ 394/395/397/396/412/201/
120B/34 IPC.”=
The Act does not do away or
obliterate the enforcement of the law insofar as juvenile offenders are
concerned. The same penal law i.e. Indian Penal Code apply to all
juveniles. The only difference is that a different scheme for trial and
punishment is introduced by the Act in place of the regular provisions
under the Code of Criminal Procedure for trial of offenders and the
punishments under the Indian Penal Code. The above situation is vastly
different from what was before the Court in Mithu (supra) and also in Dadu
(supra). In Mithu (supra) a separate treatment of the accused found guilty
of a second incident of murder during the currency of the sentence for an
earlier offence of murder was held to be impermissible under Article 14.
Besides the absence of any judicial discretion, whatsoever, in the matter
of imposition of sentence for a second Act of murder was held to be “out of
tune” with the constitutional philosophy of a fair, just and reasonable
law. On the other hand in Dadu (supra), Section 32A of the NDPS Act which
had ousted the jurisdiction of the Court to suspend a sentence awarded
under the Act was read down to mean that the power of suspension,
notwithstanding Section 32A of the NDPS Act, can still be exercised by the
appellate court but subject to the conditions stipulated in Section 37
namely (i) there are reasonable grounds for believing that the accused is
not guilty of such offence; and (ii) that he is not likely to commit any
offence while on bail are satisfied. Nothing as sweeping and as drastic in
Mithu (supra) and Dadu (supra) has been introduced by the provisions of the
Act so as to enable us to share the view expressed by Dr. Hingorani that
the Act sets at naught all the essential features of the criminal justice
system and introduces a scheme which is abhorrent to our constitutional
values. Having taken the above view, we do not consider it necessary to
enter in the consequential arena, namely, the applicability of the
provisions of Article 20(3) of the Constitution and Section 300 of the Code
of Criminal Procedure to the facts of the present case as on the view that
we have taken no question of sending the juvenile – Raju to face a regular
trial can and does arise.
Conculsion
2014 (March. Part ) judis.nic.in/supremecourt/filename=41356
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 695 OF 2014
(Arising Out of SLP (Crl.) No.1953 of 2013)
DR. SUBRAMANIAN SWAMY & ORS. ... APPELLANT (S)
VERSUS
RAJU THR. MEMBER JUVENILE ... RESPONDENT (S)
JUSTICE BOARD & ANR.
With
W.P. (Crl.) No.204 of 2013
J U D G M E N T
RANJAN GOGOI, J.
SLP (Crl.) No.1953 of 2013
1. On 16th December, 2012 a young lady (23 years in age) and her friend
were returning home after watching a movie in a multiplex located in one of
the glittering malls of Delhi. They boarded a bus to undertake a part of
the journey back home. While the bus was moving, 5 persons brutally
assaulted the young lady, sexually and physically, and also her friend.
Both of them were thrown out of the bus. The young lady succumbed to her
injuries on 29.12.2012.
2. Five persons were apprehended in connection with the crime. One of
them, identified for the purpose of the present case as Raju, was below 18
years of age on the date of commission of the crime. Accordingly, in
compliance with the provisions of the Juvenile Justice Act, 2000 ( as
amended and hereinafter referred to as ‘the Act’) his case was referred for
inquiry to the Juvenile Justice Board. The other accused were tried in a
regular sessions court and have been found guilty, inter alia, of the
offences under Section 376 (2)(g) and Section 302 of the Indian Penal Code,
1860 (for short “the Penal Code”). They have been sentenced to death by
the learned trial court. Their appeal against the aforesaid conviction and
the sentence imposed has since been dismissed and the death penalty has
been confirmed by the High Court of Delhi.
3. Before the Juvenile Justice Board to whom the case of Raju was
referred for inquiry, the petitioners had filed applications for their
impleadment to enable them to ‘prosecute’ the juvenile alongside the public
prosecutor. The petitioners also claimed that, on a proper interpretation
of the Act, the juvenile was not entitled to the benefits under the Act but
was liable to be tried under the penal law of the land in a regular
criminal court alongwith the other accused.
4. According to the petitioners, after an elaborate hearing, the Board
had fixed the case on 25.01.2013 for pronouncement of order on the question
of maintainability of the application filed by the petitioners and also on
their prayer for impleadment. However, insofar as the interpretation of
the provisions of the Act for determination of the question whether the
offence(s) allegedly committed by the juvenile is to be inquired into by
the Board or the juvenile is required to be tried in a regular criminal
court is concerned, the Board had expressed its inability to decide the
same and had directed the petitioners to seek a authoritative pronouncement
on the said issue(s) from the High Court.
5. Accordingly, the petitioners had instituted a writ proceeding before
the High Court of Delhi, which was registered as Writ Petition (Crl.) No.
124 of 2013, seeking the following reliefs :-
“i. Laying down an authoritative interpretation of Sections 2(I) and
2(k) of the Act that the criterion of 18 years set out therein
does not comprehend cases grave offences in general and of
heinous crimes against women in particular that shakes the root
of humanity in general.
ii. That the definition of offences under Section 2(p) of the Act be
categorized as per grievousness of the crime committed and the
threat of public safety and order.
iii. That Section 28 of the Act be interpreted in terms of its
definition, i.e., alternative punishment and serious offences
having minimum punishment of seven years imprisonment and above
be brought outside its purview and the same should be tried by
an ordinary criminal court.
iv. Incorporating in the Act, the International concept of age of
criminal responsibility and diluting the blanket immunity
provided to the juvenile offender on the basis of age.
v. That the instant Act be read down in consonance with the rights
of victim as protected by various fundamental rights including
Article 14 and 21 of the Constitution of India.” (sic)
“
6. The High Court by its order dated 23.01.2013 dismissed the writ
petition holding that against the order of the Juvenile Justice Board the
alternative remedies available under the Act should be exhausted in the
first instance and in the course thereof the question of interpretation of
the provisions of the Act can well be considered.
7. On the very next day, the Board by an elaborate order dated
24.01.2013 rejected the prayer of the petitioners for impleadment in the
proceeding against the delinquent and seeking participation therein. In
the aforesaid circumstances, on 19.02.2013, Special Leave Petition (Crl.)
No.1953 of 2013 was lodged before this Court challenging the aforesaid
order of the High Court of Delhi.
8. The maintainability of the Special Leave Petition was seriously
disputed by the respondent No.1 i.e. juvenile Raju as well as the Union of
India. In support, it was, inter alia, contended that the administration
of criminal justice in India does not envisage the role of a third
party/stranger. Primarily, it is the State which is entrusted with the
duty of prosecution in the discharge of which a limited role so far as the
complainant/first informant of an offence is concerned and that too in
specified situations, is contemplated by the provisions of the Code of
Criminal Procedure. The preliminary objection of the respondents to the
maintainability of the Special Leave Petition was heard at length by this
Court and by order dated 22.08.2013 it was held as follows:
“All that the petitioners seek is an authoritative pronouncement of
the true purport and effect of the different provisions of the JJ Act
so as to take a juvenile out of the purview of the said Act in case he
had committed an offence, which, according to the petitioners, on a
true interpretation of Section 2(p) of the Act, is required to be
identified and distinguished to justify a separate course of action,
namely, trial in a regular Court of law as a specific offence under
the Penal Code and in accordance with the provisions of the Code of
Criminal Procedure. The adjudication that the petitioners seek
clearly has implications beyond the case of the first respondent and
the proceedings in which he is or may be involved. In fact,
interpretation of the relevant provisions of the JJ Act in any manner
by this Court, if made, will not be confined to the first respondent
alone but will have an effect on all juveniles who may come into
conflict with law both in the immediate and distant future. If we are
to view the issue of maintainability of the present proceeding from
the aforesaid perspective reference to the case of the first
respondent in the pleadings must be understood to be illustrative. If
this Court is to interpret the provisions of the Act in the manner
sought by the petitioners, the possible effect thereof in so far as
the first Respondent is concerned will pale into insignificance in the
backdrop of the far reaching consequences that such an interpretation
may have on an indeterminate number of persons not presently before
the Court. We are, therefore, of the view that it would be
appropriate for us) hold that the special leave petition does not
suffer from the vice of absence of locus on the part of the
petitioners so as to render the same not maintainable in law. We,
therefore, will proceed to hear the special leave petition on merits
and attempt to provide an answer to the several questions raised by
the petitioners before us.” (sic)
9. Notice in the special leave petition was accordingly issued in
response to which detailed counter affidavit has been filed on behalf of
the Union as well as the respondent-juvenile Raju. In addition, Crl. Misc.
Petition No.22586/2013 (by Smt. June Chaudhari, Senior Advocate), Crl.
Misc. Petition No.25075/2013 (on behalf of Centre for Child and the Law,
National Law School of India University and Ors.), Crl. Misc. Petition
No.15792/2013 (on behalf of Prayas Juvenile Aid Centre, Tughlakabad,
Institutional Area, New Delhi) and Crl. Misc. Petition No.23226/2013 (by
Dr. Madhuker Sharma) for interventions have been filed, all of which have
been allowed. The matter was elaborately heard on different dates by this
Court in the course of which written notes and arguments as well as
documents relevant to the issues have been placed before the Court by the
contesting parties. In view of the elaborate consideration on the basis of
the arguments advanced and the materials placed we deem it proper to grant
leave to appeal and to decide the case on merits upon full consideration of
the rival contentions.
Writ Petition (Crl.) No.204 of 2013
10. This writ petition has been filed by the parents of the victim of the
incident that had occurred on 16.12.2012 seeking the following reliefs :
“(i) a Direction striking down as unconstitutional and void the
Juvenile Justice (Care and Protection of Children) Act 2000 (Act No.56
of 2000) to the extent it puts a blanket ban on the power of the
criminal courts to try a juvenile offender for offences committed
under the Indian Penal Code, 1860; and
(ii) a Direction that the Respondent No.2 be tried forthwith by
the competent criminal court for the offences against the daughter of
the petitioners in F.I.R. No.413/12, P.S. Vasant Vihar, New Delhi
under sections 302/365/376(2)G/377/307/ 394/395/397/396/412/201/
120B/34 IPC.”
11. The issues raised being similar to those arising in Special Leave
Petition (Crl.) No.1953 of 2013, both cases were heard together and are
being disposed of by means of this common order.
12. We have heard Dr. Subramanian Swamy, the first appellant appearing in
person and also representing the other appellants as well as Dr. Aman
Hingorani, learned counsel appearing on behalf of the petitioners in W.P.
(Crl.) No.204 of 2013. We have also heard Shri Sidharth Luthra, learned
Additional Solicitor General, appearing for the Union of India and Shri
A.J. Bhambhani, learned counsel appearing for the juvenile respondent
No.1–Raju apart from the intervenors appearing in person or through their
respective counsels.
13. Dr. Subramanian Swamy has, at the outset, clarified that he is
neither challenging the provisions of Section 2(k) and 2(l) of the Act nor
is he invoking the jurisdiction of the Court to strike down any other
provision of the Act or for interference of the Court to reduce the minimum
age of juveniles fixed under the Act as 18 years. What Dr. Swamy has
contended is that having regard to the object behind the enactment, the Act
has to be read down to understand that the true test of “juvenility” is not
in the age but in the level of mental maturity of the offender. This, it
is contended, would save the Act from unconstitutionality and also further
its purpose. The Act is not intended to apply to serious or heinous crimes
committed by a juvenile. The provisions of Sections 82 and 83 of the
Indian Penal Code have been placed to contend that while a child below 7
cannot be held to be criminally liable, the criminality of those between 7
and 12 years has to be judged by the level of their mental maturity. The
same principle would apply to all children beyond 12 and upto 18 years
also, it is contended. This is how the two statutes i.e. Indian Penal Code
and the Act has to be harmoniously understood. The provisions of Section
1(4) of the Act which makes the provisions of the Act applicable to all
cases of detention, prosecution and punishment of juveniles in conflict
with law, to the exclusion of all other laws, would be unconstitutional if
the Act is not read down. Specifically, Dr. Swamy contends that in
that event the Act will offend Article 14 of the Constitution as all
offenders below the age of 18 years irrespective of the degree/level of
mental maturity and irrespective of the gravity of the crime committed
would be treated at par. Such a blanket treatment of all offenders below
the age of 18 committing any offence, regardless of the seriousness and
depravity, is wholly impermissible under our constitutional scheme. The
non-obstante provisions contained in Section 1(4) of the Act as well as the
bar imposed by Section 7 on the jurisdiction of the criminal court to try
juvenile offenders cannot apply to serious and heinous crime committed by
juveniles who have reached the requisite degree of mental maturity, if the
Act is to maintain its constitutionality. Reliance is also placed on Essa
@ Anjum Abdul Razak Memon vs. State of Maharashtra[1] to contend that the
purport and effect of Section 1(4) of the Act must be understood in a
limited manner.
14. By referring to the provisions of the United Nations Standard Minimum
Rules for the Administration of Juvenile Justice, 1985 (Beijing Rules);
the Convention of the Rights of the Child, 1990 (CRC) and the United
Nations Rules for the Protection of Juveniles Deprived of their Liberty,
1990(Havana Rules), Dr. Swamy has contended that the international
commitments entered into by India obliges it to set up a particular
framework to deal with juvenile offenders and such obligations can be more
comprehensively met and effectuated by understanding the Act in the
aforesaid manner. The practice in vogue in several foreign jurisdictions,
particularly, in the U.K., USA and Canada for adjudicating criminal
liability of young offenders has also been placed before the Court.
Specifically, it is pointed out that the practice of statutory exclusion
which ensures that perpetrators of certain grave offences are prosecuted as
adults; ‘judicial waiver’, granting discretion to special juvenile courts
to waive jurisdiction and transfer the juvenile’s case to an ordinary court
of law and also the policy of concurrent jurisdiction of both the ordinary
and juvenile courts giving discretion to the prosecutor to initiate
proceedings in the more suitable court are followed in such jurisdictions.
Shri Swamy has also suggested that Section 28 of the Act be read together
with Section 15 to enable the alternatively higher punishment under other
State/Central enactments, such as the IPC to be awarded to a juvenile
offender. It is argued that this would incorporate the policy of
concurrent jurisdiction of both ordinary criminal courts and JJ Boards.
15. Legislative overreach in enacting the Act is the core argument
advanced on behalf of the petitioners in Writ Petition (Crl.) No.204 of
2013. Dr. Aman Hingorani, learned counsel urges that the ban on
jurisdiction of criminal courts by Section 7 of the Act is unconstitutional
inasmuch as it virtually ousts the criminal justice system from dealing
with any offence committed by a juvenile. Parliament cannot make a law to
oust the judicial function of the courts or even judicial discretion in a
matter which falls within the jurisdiction of the courts. Reliance in this
regard is placed on the judgments of this Court in the case of Mithu Vs.
State of Punjab[2] and Dadu Vs. State of Maharashtra[3]. It is argued that
what the Act contemplates in place of a regular criminal trial is a non-
adversarial inquiry against the juvenile where the prime focus is not on
the crime committed but on the reasons that had led the juvenile to such
conduct. The maximum power of ‘punishment’, on proof of guilt, is to send
the juvenile to a special home for three years. The entire scheme under
the Act being substantially different from what is provided by the Code of
Criminal Procedure for investigation of offences and for trial and
punishment of offenders, it is submitted that the Act offends a core
constitutional value namely, the existence of a criminal justice system.
The proceedings against the juvenile Raju held by the JJ Board are,
therefore, null and void and the said juvenile is liable to be tried by a
competent criminal court in accordance with the procedure prescribed. In
this regard, it is also submitted that the concept of double jeopardy under
Article 20(3) of the Constitution and Section 300 of Penal Code will have
no application inasmuch as the proceedings before the JJ Board did/does not
amount to a trial. Contentions somewhat similar to what has been advanced
by Dr. Swamy to explain the degree of constitutional flexibility that the
Act would enjoy has also been urged by Dr. Hingorani who however goes a
step forward to contend that the decision in Salil Bali vs. Union of
India[4] will not be an inhibition for the Court to answer the question(s)
raised as not only the issues arising in Salil Bali (supra) are different
but the said decision is founded on an entirely different legal
perspective.
16. Shri Anoop G. Chaudhary, learned senior counsel appearing for the
intervenor Smt. June Chaudhari and Dr. Madhuker Sharma,
intervenor, appearing in person have supported the case projected by Dr.
Swamy and Dr. Aman Hingorani, noticed above.
17. The arguments advanced on behalf of the appellants as well as the writ
petitioners are hotly contested. Shri Sidharth Luthra, learned Additional
Solicitor General submits that what is contemplated by the Act is in
furtherance of the country’s obligations arising from a series of
international conventions to which India is a signatory. The Act is an
expression of legislative wisdom to treat all persons below 18 as juveniles
and to have an alternate system of dealing with such juveniles who come
into conflict with law. Shri Luthra has submitted that the constitutional
validity of the Act has been upheld by a Coordinate Bench in Salil Bali
(supra). Shri Luthra has also submitted that psychological/mental,
intellectual and emotional maturity of a person below 18 years cannot be
objectively determined on an individual or case to case basis and the
fixation of the Minimum Age of Criminal Responsibility (MACR) under the Act
is a policy decision taken to give effect to the country’s international
commitments. In so far as the specific contentions advanced on behalf of
the writ petitioners in W.P. (Crl.) No.204 of 2013 is concerned, Shri
Luthra has submitted that the Act does not provide a blanket immunity to
juvenile offenders, as contended. What the Act contemplates is a different
procedure to deal with such offenders. If found guilty, they are subjected
to a different scheme of punishment. The learned counsel appearing on
behalf of the juvenile Raju, while supporting the contentions advanced by
Shri Luthra, has further submitted that the United Nations Convention on
the Rights of the Child, 1990 read with the concluding Resolution of the
Committee on Child Rights (constituted under the UN Convention) of the year
2000 qua India and the General Resolution of the year 2007 clearly
contemplate the MACR as 18 years and mandates member States to act
accordingly. Learned counsel on the strength of the elaborate academic and
research work placed on record has tried to persuade the Court to take the
view that :-
(1) Countries like U.K. Canada and USA have departed from the
obligations under the UN Convention and are in breach of their
international commitments. The incidence of crime by juveniles
in those countries is very high which is not so in India. It is
submitted that, of late, a re-thinking on the issue is
discernible to demonstrate which reliance is placed on some
recent pronouncements of the US Supreme Court, details of which
will be noticed hereinafter.
(2) That the level of mental/intellectual maturity in any given case
cannot be determined with any degree of accuracy and precision
and the results vary from case to case and from individual to
individual. A system which provides for an option to refer a
juvenile to a regular court, therefore, ought not to be accepted
as no objective basis for such reference exists.
18. Shri Amod Kanth, representing Prayas Juveniles Aid Centre and learned
counsel for the intervener Centre for Child and the Law, National Law
School of India University and others have supported the stand taken by the
learned Additional Solicitor General. Elaborate written submissions have
been filed to substantiate the argument that having regard to
expert/psychological/medical opinion available the MACR cannot be
determined, with any acceptable degree of precision, on the basis of a case
to case study for which reason the legislative wisdom inherent in the Act
must be accepted and respected. Statistics of the crimes (Crime rate)
committed by juvenile offenders have also been brought on record to contend
that the beneficial nature of the legislation does not call for any relook,
even on the touchstone of Constitutional permissibility.
19. At the very outset, two initial hurdles to the present adjudication,
set up by the respondents, may be conveniently dealt with. The first is
that the constitutional validity of the Act has been upheld in Salil Bali
(supra) and it is not necessary to revisit the said decision even if it be
by way of a reference to a larger Bench. The second is with regard to the
recommendations of the Justice J.S. Verma Committee following which
recommendations, the Criminal Law Amendment Act, 2013 has been enacted by
the legislature fundamentally altering the jurisprudential norms so far as
offences against women/sexual offences are concerned.
20. In Salil Bali (supra) the constitutional validity of the Act,
particularly, Section 2(k) and 2(l) thereof was under challenge, inter
alia, on the very same grounds as have now been advanced before us to
contend that the Act had to be read down. In Salil Bali (supra) a
coordinate Bench did not consider it necessary to answer the specific
issues raised before it and had based its conclusion on the principle of
judicial restraint that must be exercised while examining conscious
decisions that emanate from collective legislative wisdom like the age of a
juvenile. Notwithstanding the decision of this Court in Kesho Ram and
Others Vs. Union of India and Others[5] holding that, “the binding effect
of a decision of this Court does not depend upon whether a particular
argument was considered or not, provided the point with reference to which
the argument is advanced subsequently was actually decided in the earlier
decision…” (para 10) the issue of res judicata was not even remotely raised
before us. In the field of public law and particularly when constitutional
issues or matters of high public interest are involved, the said principle
would operate in a somewhat limited manner; in any case, the petitioners in
the present proceeding were not parties to the decision rendered in Salil
Bali (supra). Therefore, we deem it proper to proceed, not to determine
the correctness of the decision in Salil Bali (supra) but to consider the
arguments raised on the point of law arising. While doing so we shall
certainly keep in mind the course of action that judicial discipline would
require us to adopt, if need be. Though expressed in a somewhat different
context we may remind ourselves of the observations of the Constitution
Bench of this Court in Natural Resources Allocation, In Re, Special
Reference No.1 of 2012[6] extracted below:-
“48.2. The second limitation, a self-imposed rule of judicial
discipline, was that overruling the opinion of the Court on a legal
issue does not constitute sitting in appeal, but is done only in
exceptional circumstances, such as when the earlier decision is per
incuriam or is delivered in the absence of relevant or material
facts or if it is manifestly wrong and capable of causing public
mischief. For this proposition, the Court relied upon the judgment
in Bengal Immunity case (AIR 1955 SC 661) wherein it was held that
when Article 141 lays down that the law declared by this Court shall
be binding on all courts within the territory of India, it quite
obviously refers to courts other than this Court; and that the Court
would normally follow past precedents save and except where it was
necessary to reconsider the correctness of law laid down in that
judgment. In fact, the overruling of a principle of law is not an
outcome of appellate jurisdiction but a consequence of its inherent
power. This inherent power can be exercised as long as a previous
decree vis-à-vis a lis inter partes is not affected. It is the
attempt to overturn the decision of a previous case that is
problematic, which is why the Court observed that: [Cauvery (2) case
(1993 Supp (1) SCC 96 (2), SCC p. 145, para 85]
“85. … Under the Constitution such appellate jurisdiction
does not vest in this Court, nor can it be vested in it by the
President under Article 143.”
21. The issues arising and the contentions advanced therefore will have
to be examined from the aforesaid limited perspective which we are inclined
to do in view of the importance of the questions raised.
22. The next issue that would need a resolution at the threshold is the
effect of the recommendations of the Justice J.S. Verma Committee
constituted by the Government of India by Notification dated 24th December,
2012 following the very same incident of 16th December 2012 so far as the
age of a juvenile is concerned. The terms of reference to the Justice J.S.
Verma Committee were indeed wide and it is correct that the Committee did
not recommend reduction of the age of juveniles by an amendment of the
provisions of the Act. However, the basis on which the Committee had come
to the above conclusion is vastly different from the issues before this
Court. The recommendations of the Justice J.S. Verma Committee which
included the negative covenant so far as any amendment to the JJ Act is
concerned was, therefore, in a different context though we must hasten to
add the views expressed would undoubtedly receive our deepest consideration
while dealing with the matter in hand.
23. The stage is now appropriate to have a look at the international
conventions, holding the field, to which India has been a signatory.
The UN Standard Minimum Rules for the Administration of Juvenile
Justice (“the Beijing Rules”) were adopted by the General Assembly of the
United Nations in 1985. Rule 2.2(a) defines a juvenile as a child or young
person who, under the respective legal system, may be dealt with for an
offence differently than an adult. Rule 4.1 set out below mandates Member
States to refrain from fixing a minimum age of criminal responsibility that
is too low, bearing in mind the facts of emotional, mental and intellectual
maturity.
“4.1 In those legal systems recognizing the concept of the age of
criminal responsibility for juveniles, the beginning of that age shall
not be fixed at too low an age level, bearing in mind the facts of
emotional, mental and intellectual maturity.”
24. The Beijing Rules take into account penological objectives in
addition to rehabilitation of the offender. In Rule 17.1, the guiding
principles of adjudicating matters involving juveniles are enlisted:
a) The reaction shall always be proportional to not only the
circumstances and the gravity of the offence, but also to the
circumstances and needs of the juvenile as well as to the needs of
society;
b) Restrictions on personal liberty of the juvenile shall be imposed
only after careful consideration and shall be limited to the
possible minimum;
c) Deprivation of personal liberty shall not be imposed unless the
juvenile is adjudicated of a serious act involving violence against
another person or of persistence in committing other serious
offences and unless there is no other appropriate response;
d) The well-being of the juvenile shall be the guiding factor while
considering his case.
It is clear that the Beijing Rules do not prohibit detention of a juvenile
if he is proved to have committed a violent, serious offence, or to have
repeatedly committed such serious offences though Rule 17.2 of the Beijing
Rules prohibits the imposition of capital punishment of juveniles. Thus,
the Rules do not advocate leniency in dealing with such offenders but only
contemplate that detention be limited to the most serious cases where no
other alternative is found appropriate after careful consideration.
25. The Convention on the Rights of the Child, 1990 (“CRC”), in Article
1, adopts a chronological definition of a “child”, viz. less than 18 years
old, unless majority under national legislation is attained earlier:
“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.”
Article 37(a) of the CRC prohibits the imposition of capital
punishment and life imprisonment without possibility of release on
offenders below 18 years of age. The CRC further obliges State Parties to
establish a minimum age below which children shall be presumed not to have
the capacity to infringe the penal law (Article 40(3)(a)).
26. Rule 1.2 of the Havana Rules provide that a juvenile should be
deprived of his/her liberty only as a measure of the last resort limited to
exceptional cases and for the minimum necessary period. Even then,
detention should be in such a manner and in conditions that respect the
human rights of juveniles (Rule 12).
Rule 11(a) of the Havana Rules, 1990 define a juvenile as every
person under the age of 18, and allow national laws to determine a minimum
age below which such person will not be detained.
27. Under Article 43 of the CRC, constitution of a Committee for the
purpose of examining the progress made by the State parties on the rights
of the child is contemplated. The first meeting of the Committee under
Article 44 was to be within 2 years of the coming into force of the
convention so far as a particular State party, in respect of whom review of
the progress is made, is concerned. Thereafter, the Committee is required
to meet every 5 years. In January, 2000, the Committee considered the
initial report of India submitted on 19.03.1997 and adopted certain
“concluding observations” the relevant part of which are extracted
hereinbelow:
“79. The Committee is concerned over the administration of juvenile
justice in India and its incompatibility with articles 37, 40 and 39
of the Convention and other relevant international standards. The
Committee is also concerned at the very young age of criminal
responsibility – 7 years – and the possibility of trying boys between
16 and 18 years of age as adults. Noting that the death penalty is de
facto not applied to persons under 18, the Committee is very concerned
that de jure, this possibility exists. The Committee is further
concerned at the overcrowded and unsanitary conditions of detention of
children, including detention with adults; lack of application and
enforcement of existing juvenile justice legislation; lack of training
for professionals, including the judiciary, lawyers and law
enforcement officers, in relation to the Convention, other existing
international standards and the 1986 Juvenile Justice Act; and the
lack of measures and enforcement thereof to prosecute officials who
violate these provisions.
80. The Committee recommends that the State party review its laws in
the administration of juvenile justice to ensure that they are in
accordance with the Convention, especially Articles 37, 40 and 39, and
other relevant international standards such as the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice (the
Beijing Rules), the United Nations Guidelines for the Prevention of
Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules
for the Protection of Juveniles Deprived of their Liberty and the
Vienna Guidelines for Action on Children in the Criminal Justice
System.
81. The Committee recommends that the State party abolish by law the
imposition of the death penalty on persons under 18. The Committee
also recommends that the State party consider raising the age of
criminal responsibility and ensure that persons under 18 years are not
tried as adults. In accordance with the principle of non-
discrimination contained in article 2 of the Convention, the Committee
recommends article 29(h) of the 1986 Juvenile Justice Act be amended
to ensure that boys under 18 years are covered by the definition of
juvenile, as girls already are. The Committee recommends that the
1986 Juvenile Justice Act be fully enforced and that the judiciary and
lawyers be trained and made aware of it. The Committee further
recommends that measures be taken to reduce overcrowding, to release
those who cannot be given a speedy trial and to improve prison
facilities as quickly as possible. The Committee recommends that the
State party ensure regular, frequent and independent monitoring of
institutions for juvenile offenders.”
It is pursuant to the aforesaid concluding observations of the Committee
made in the year 2000 that the JJ Act was amended in the later part of that
year by having a uniform age of 18 for both male and female juveniles.
28. It needs to be clarified that the concluding observations of the
Committee under Article 45 of the UN Convention (CRC) are qua a particular
State party whereas general comments of the Committee under the same
Article are authoritative interpretations addressed to all State parties.
The above distinction between “concluding observations” and “general
comments” is highlighted to draw attention to the fact that in the meeting
of the Committee held in Geneva in the year 2007 certain general
observations with regard to MCAR of 18 years were made which would be
applicable to State parties other than India as the law had already been
amended in our country pursuant to the concluding observations made by the
Committee in the year 2000 specifically qua India. The views of the
Committee in respect of other member States may be usefully taken note at
this stage by extracting the recommendations in the nature of general
comments in paras 36, 37 and 38 of the Report:
“36. The Committee also wishes to draw the attention of States parties
to the upper age-limit for the application of the rules of juvenile
justice. These special rules - in terms both of special procedural
rules and of rules for diversion and special measures - should apply,
starting at the MACR set in the country, for all children who, at the
time of their alleged commission of an offence (or act punishable
under the criminal law), have not yet reached the age of 18 years.
“37. The Committee wishes to remind States parties that they have
recognized the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in
accordance with the provisions of article 40 of CRC. This means that
every person under the age of 18 years at the time of the alleged
commission of an offence must be treated in accordance with the rules
of juvenile justice.
“38. The Committee, therefore, recommends that those States parties
which limit the applicability of their juvenile justice rules to
children under the age of 16 (or lower) years, or which allow by way
of exception that 16 or 17-year-old children are treated as adult
criminals, change their laws with a view to achieving a non-
discriminatory full application of their juvenile justice rules to all
persons under the age of 18 years. The Committee notes with
appreciation that some States parties allow for the application of the
rules and regulations of juvenile justice to persons aged 18 and
older, usually till the age of 21, either as a general rule or by way
of exception.”
(emphasis added)
29. Both sides have laboured to assist the Court with elaborate and
detailed scientific and medical literature in support of their respective
stands. The scientific and medical opinion on the issue is not at variance
and it cannot be. The difference lies in the respective perceptions as we
will presently see. The works and opinions placed goes to show that
studies of adolescent brain anatomy clearly indicate that regions of the
brain that regulate such things as foresight, impulse control and
résistance to peer pressure are in a developing stage upto the age of 18.
These are normative phenomenon that a teenager cannot control and not a
pathological illness or defect. An article by Laurence Steinberg & Laura
H. Carnell titled “Should the Science of Adolescent Brain Development
inform Public Policy” is relied upon. On the basis of the above it is
contended that there is no answer to the question when an adolescent brain
becomes an adult brain because the structural and conventional changes do
not take place on a uniform time scale. It is further argued that
intellectual maturity of an adolescent is different from emotional or
social maturity which makes an adolescent mature for some decisions but not
for others, a position also highlighted by the Act which pre-supposes the
capacity of a child under 18 to consent for his adoption under Section
41(5) of the Act. On the said materials while the petitioners argue that
the lack of uniformity of mental growth upto the relevant age i.e. 18 years
would justify individualized decisions rather than treating adolescent as a
class the opposite view advanced is that between the lower and the upper
age, the age of 18 provides a good mid point of focus which may result in
some amount of over-classification but that would be inevitable in any
situation and a mid point reduces the chances of over-classification to the
minimum. These are the varying perceptions alluded to earlier.
30. It may be advantageous to now take note of the Juvenile Justice
System working in other jurisdictions.
A - CANADA
In Canada, the Youth Criminal Justice Act, 2002 provides for criminal
justice to young persons aged between 12 to 18 years. The Preamble
expressly states that the Act was enacted pursuant to Canada’s obligations
under the CRC. The Preamble also declares that “Canadian society should
have a youth criminal justice system that commands respect, takes into
account the interests of victims, fosters responsibility and ensures
accountability through meaningful consequences and effective rehabilitation
and reintegration, and that reserves its most serious intervention for the
most serious crimes and reduces the over-reliance on incarceration for non-
violent young persons.” (emphasis added)
While a ‘child’ is a person aged less than 12 years, a ‘young person’
is one aged between 12 and 18 years. Section 13 establishes “youth justice
courts” which have exclusive jurisdiction to try offences committed by a
young person. The Act makes special provisions where a young person commits
a “serious offence” (indictable offence punishable with more than 5 years’
imprisonment) and “serious violent offence” (first and second degree
murder, manslaughter, aggravated sexual assault, attempted murder). Custody
sentences are reserved for violent and serious crimes, but cannot exceed
the maximum punishment that can be awarded to adults for the same offence
(Section 38(2)(a)). One sentencing option is the “Intensive Rehabilitative
Custody and Supervision Order”, which is reserved for serious violent
offenders including for aggravated sexual assault. When the offender
attains 18 years, the Court may place him in an adult correctional centre
if this is in his best interest or in public interest.
Section 34 permits the Youth Justice Court to order for the mental and
psychological assessment of the young person for the following reasons
only:
a. Considering an application for release from or detention in
custody;
b. Deciding on an application for hearing the offender on adult
sentence;
c. Making or reviewing a youth sentence;
d. Considering an application relating to continuation of custody;
e. Making an order for conditional supervision;
f. Authorizing disclosure of information about a young person.
Further, assessment may be ordered only where (i) the offender has
committed a serious violent crime, or (ii) the Court suspects he is
suffering from a mental illness or disorder, or (iii) the offender has a
criminal history with repeated findings of guilt. Thus, an assessment under
Section 34 cannot be ordered for determining whether the offender lacks
sufficient “maturity” to be classified as a “juvenile/young person” (and
thus qualify for the benefits of the Act). This Act, like the JJ Act uses
the chronological test for determining its beneficiaries. However, in cases
of serious and serious violent crimes, the offender may be punished by the
Youth Justice Court with equivalent years of imprisonment as in the case of
an adult (Sections 38 & 39).
In its concluding remarks on Canada (dt. 05.10.2012), the Committee on
Rights of the Child expressed concern that the State had taken no steps to
raise the MACR and continued to try children under 18 as adults (in
relation to the circumstances or gravity of the offence). Besides
recommending the increase in MACR, the Committee also recommended that the
State i.e. Canada to ensure that no person under 18 is tried as an adult
irrespective of the circumstances or the gravity of the offence.[7]
B – UNITED KINGDOM
31. Children less than 10 years of age are irrefutably considered as
incapable of committing an offence. Children between 10-18 years are
capable of committing offences, but are usually tried in the Youth Court,
unless they have committed serious offences (such as rape or homicide) or
have been charged with adults (co-defendants), in which case they are tried
in the Crown Court. When jointly charged with adult co-defendants, though
the charges must be framed in the Magistrate’s court with the other
defendants, the juvenile should be sent to the Crown Court for trial if
there is a “real prospect” of him being sentenced to over 2 years’ custody
period.
The general policy of law in the UK is (i) juveniles under 18 years,
especially under 15 years, should be tried as far as possible by the Youth
Court, reserving trial in the Crown Court for serious cases, and (ii) first
time offenders aged 12-14 years and all offenders under 12 years should not
be detained in custody.
Sentencing: “Detention and Training Orders” may be given to an
offender aged 12-17 years, the first half of which is served in custody and
the second half is served in the community. These usually last between 4
months and 2 years.
“Extended” custodial sentences are given to young persons if their
crime is so serious that no other alternative is suitable, or if the young
person is a habitual offender, or if the Judge thinks the person is a risk
to public safety. Under S.91 of the Powers of Criminal Courts (Sentencing)
Act, 2000, a person below 18 years who is convicted of a serious offence,
may be sentenced to a period not exceeding the maximum term of imprisonment
for adults, including life. The place of detention is a young offender
institution. The Sentencing Guidelines provide that a sentence exceeding 2
years in respect of youth aged 12-17 years and accused of a grave offence
should be made only when such a sentence is a “realistic possibility”.
Instances of such offences include sexual assault. Where a person is
convicted of murder, he must be sentenced to detention at Her Majesty’s
pleasure.
C – UNITED STATES OF AMERICA
32. The US has a relatively high rate of juvenile delinquency. In 2011,
the number of juvenile delinquents was 129,456 out of a population of 250
million. Although the traditional age of majority is 18 years, nearly all
States permit persons less than 18 years to be tried as adults.
For example, in California, the majority age is 18 years, but persons
older than 14 years may be tried as adults if they commit serious crimes
(rape, robbery, murder etc.). The state of New York pegs the age of
juvenility at 16 years, and permits the prosecution of persons aged between
13-16 years as adults in case of serious crimes. In Florida, the
prosecutor has discretion to decide whether to try the juvenile as such or
as an adult, owing to concurrent jurisdiction of the juvenile and ordinary
criminal courts.
There are three legal mechanisms that permit the juvenile to be tried
as an adult in the States:
i. Judicial Waiver: The juvenile judge has the discretion to waive
jurisdiction and transfer the case to the adult criminal courts.
Presently, all states except Nebraska, New York, and New Mexico,
provide for judicial waiver. This discretion is entirely left to
the Judge in some States, whereas others provide some criteria
for its exercise. In Breed v. Jones (1975), the Court held that
adjudicating a juvenile first in a juvenile court, which
subsequently waived jurisdiction, followed by adjudication by an
adult court, violated the Fifth Amendment protection against
double jeopardy.;
ii. Prosecutorial Discretion : Where the prosecutor has the
discretion to decide whether to try the offender in a juvenile
or adult criminal court. This is most common in cases of repeat
offenders;
iii. Statutory exclusion: Where State legislation provides that the
youth be tried as an adult, based on factors such as the gravity
of the offence, prior criminal record, age of the youth etc.
iv. Blended Sentencing: A juvenile court may sentence a convicted
juvenile offender to both a juvenile sentence and an adult
sentence. The adult sentence is suspended on the condition that
the juvenile offender successfully completes the term of the
juvenile disposition and refrains from committing any new
offence. For example, juvenile courts in the State of Texas may
award up to 40 years’ sentence to offenders.
The trial procedure and sentencing principles applicable to adults are
equally applicable in case a person under 18 years is transferred to an
adult criminal court. Juveniles cannot, however, be sentenced to death
(Roper v. Simmons[8]) or imprisoned for life without possibility of parole
(Graham v. Florida[9]).
D - BRAZIL
33. The Statute of the Child and the Adolescent, 1990, enacted in
compliance with the CRC, treats persons below 18 years (but above 12 years)
as adolescents. ‘Councils of Guardianship’, municipal tribunals comprising
five locally elected members, deal with cases involving preadolescents
(younger children). Juvenile Courts deal with cases involving older
children. Confinement and incarceration are reserved for older youths up to
the age of 21 years.
E - BANGLADESH
34. The minimum age of criminal responsibility in Bangladesh is 9 years
(raised from 7 years in 2004). The Children Act, 1974 defines a child and
youthful offender as one below 16 years of age. The Act provides for the
establishment of Juvenile Courts with exclusive jurisdiction to try
youthful offenders (Section 13, Children Act). Ordinary criminal courts may
act as Juvenile Courts if the latter are not established. Procedure under
the Criminal Procedure Code, 1898 is followed. Section 51 prohibits the
award of death sentence, imprisonment and transportation to a youthful
offender. The proviso to this section provides for situations (serious
crimes or where the juvenile is so unruly or depraved) permitting the Court
to sentence him to imprisonment. However, the period of imprisonment cannot
exceed the period of maximum punishment for adults. It appears that life
imprisonment may be awarded in these exceptional cases to juveniles.
F - AFGHANISTAN
35. The Juvenile Code sets the minimum age of criminal responsibility at
12 years. A child is defined as a person below 18 years of age. Trial of
children in conflict with the law is conducted by dedicated Juvenile
Courts. Juvenile offenders are prosecuted by special ‘Juvenile
Prosecutors’.
Sentences of death and life imprisonment cannot be awarded to
juveniles. For juveniles aged between 12-16 years, 1/3rd of the maximum
punishment to adults can be awarded. For juveniles aged between 16-18
years, ½ of the maximum punishment to adults can be awarded.
G - BHUTAN
36. The minimum age of criminal responsibility is 10 years. Although not
expressly defined, a juvenile is understood as a person below 18 years of
age. Bhutan does not possess a special legislation dealing with juvenile
offenders; there are no specialized Juvenile courts either. Section 213 of
the Civil and Criminal Procedure Code has certain provisions regulating the
trial of a juvenile offender. Persons below 18 years can be awarded half of
the adult sentence.
H - NEPAL
37. The minimum age of criminal responsibility is 10 years. A child is a
person below 16 years. Youth between 16-18 years are charged and tried as
adults.
38. The next significant aspect of the case that would require to be
highlighted is the differences in the juvenile justice system and the
criminal justice system working in India. This would have relevance to the
arguments made in W.P. No.204 of 2013. It may be convenient to notice the
differences by means of the narration set out hereinunder:
Pre-trial Processes
Filing of FIR:
Criminal Justice System: The system swings into action upon receipt of
information (oral or written) by the officer in charge of a police station
with regard to the commission of a cognizable offence.
JJ System: Rule 11(11) of the JJ Rules, 2007 states that the Police
are not required to file an FIR or a charge-sheet while dealing with cases
of juveniles in conflict with the law. Instead, they must only record the
information of the offence in the general daily diary, followed by a report
containing the social background of the juvenile, circumstances of the
apprehension and the alleged offence.
An FIR is necessary only if the juvenile has (i) allegedly committed a
serious offence like rape or murder, or (ii) has allegedly committed the
offence with an adult.
Investigation and Inquiry:
Criminal Justice System: Ss. 156 and 157, CrPC deals with the power
and procedure of police to investigate cognizable offences. The police may
examine witnesses and record their statements. On completion of the
investigation, the police officer is required to submit a Final Report to
the Magistrate u/s 173(2).
JJ System: The system contemplates the immediate production of the
apprehended juvenile before the JJ Board, with little scope for police
investigation. Before the first hearing, the police is only required to
submit a report of the juvenile’s social background, the circumstances of
apprehension and the alleged offence to the Board (Rule 11(11)). In cases
of a non-serious nature, or where apprehension of the juvenile is not in
the interests of the child, the police are required to intimate his
parents/guardian that the details of his alleged offence and his social
background have been submitted to the Board (Rule 11(9)).
Arrest
Criminal Justice System: Arrest of accused persons is regulated under
Chapter V of the CrPC. The police are empowered to arrest a person who has
been accused of a cognizable offence if the crime was committed in an
officer’s presence or the police officer possesses a reasonable suspicion
that the crime was committed by the accused. Further, arrest may be
necessary to prevent such person from committing a further crime; from
causing disappearance or tampering with evidence and for proper
investigation (S.41). Persons accused of a non-cognizable offence may be
arrested only with a warrant from a Magistrate (S.41(2)).
JJ System: The JJ Rules provide that a juvenile in conflict with the
law need not be apprehended except in serious offences entailing adult
punishment of over 7 years (Rule 11(7)). As soon as a juvenile in conflict
with the law is apprehended, the police must inform the designated
Child/Juvenile Welfare Officer, the parents/guardian of the juvenile, and
the concerned Probation Officer (for the purpose of the social background
report) (S.13 & R.11(1)). The juvenile so apprehended is placed in the
charge of the Welfare Officer. It is the Welfare Officer’s duty to produce
the juvenile before the Board within 24 hours (S. 10 & Rule 11(2)). In no
case can the police send the juvenile to lock up or jail, or delay the
transfer of his charge to the Welfare Officer (proviso to S.10 & R.11(3)).
Bail
Criminal Justice System: Chapter XXXIII of the CrPC provides for bails
and bonds. Bail may be granted in cases of bailable and non-bailable
offences in accordance with Ss. 436 and 437 of the CrPC. Bail in non-
bailable offences may be refused if there are reasonable grounds for
believing that the person is guilty of an offence punishable with death or
imprisonment for life, or if he has a criminal history (S.437(1)).
JJ System: A juvenile who is accused of a bailable or non-bailable
offence “shall” be released on bail or placed under the care of a suitable
person/institution. This is subject to three exceptions: (i) where his
release would bring him into association with a known criminal, (ii) where
his release would expose him to moral, physical or psychological danger, or
(iii) where his release would defeat the ends of justice. Even where bail
is refused, the juvenile is to be kept in an observation home or a place of
safety (and not jail).
Trial and Adjudication
The trial of an accused under the criminal justice system is governed
by a well laid down procedure the essence of which is clarity of the charge
brought against the accused; the duty of the prosecution to prove the
charge by reliable and legal evidence and the presumption of innocence of
the accused. Culpability is to be determined on the touchstone of proof
beyond reasonable doubt but if convicted, punishment as provided for is
required to be inflicted with little or no exception. The accused is
entitled to seek an exoneration from the charge(s) levelled i.e. discharge
(amounting to an acquittal) mid course.
JJ System: Under S.14, whenever a juvenile charged with an offence is
brought before the JJ Board, the latter must conduct an ‘inquiry’ under the
JJ Act. A juvenile cannot be tried with an adult (S.18).
Determination of the age of the juvenile is required to be made on the
basis of documentary evidence (such as birth certificate, matriculation
certificate, or Medical Board examination).
The Board is expected to conclude the inquiry as soon as possible
under R.13. Further, the Board is required to satisfy itself that the
juvenile has not been tortured by the police or any other person and to
take steps if ill-treatment has occurred. Proceedings must be conducted in
the simplest manner and a child-friendly atmosphere must be maintained
(R.13(2)(b)), and the juvenile must be given a right to be heard (clause
(c)). The inquiry is not to be conducted in the spirit of adversarial
proceedings, a fact that the Board is expected to keep in mind even in the
examination of witnesses (R.13(3)). R.13(4) provides that the Board must
try to put the juvenile at ease while examining him and recording his
statement; the Board must encourage him to speak without fear not only of
the circumstances of the alleged offence but also his home and social
surroundings. Since the ultimate object of the Act is the rehabilitation of
the juvenile, the Board is not merely concerned with the allegations of the
crime but also the underlying social causes for the same in order to
effectively deal with such causes.
The Board may dispense with the attendance of the juvenile during the
inquiry, if thought fit (S. 47). Before the Board concludes on the
juvenile’s involvement, it must consider the social investigation report
prepared by the Welfare Officer (R.15(2)).
The inquiry must not prolong beyond four months unless the Board
extends the period for special reasons due to the circumstances of the
case. In all non-serious crimes, delay of more than 6 months will terminate
the trial (R.13(7)).
Sentencing: The Board is empowered to pass one of the seven
dispositional orders u/s 15 of the JJ Act: advice/admonition, group
counseling, community service, payment of fine, release on probation of
good conduct and placing the juvenile under the care of parent or guardian
or a suitable institution, or sent to a Special home for 3 years or less.
Where a juvenile commits a serious offence, the Board must report the
matter to the State Govt. who may keep the juvenile in a place of Safety
for not more than 3 years. A juvenile cannot be sentenced to death or life
imprisonment.
Post-trial Processes
JJ System: No disqualification attaches to a juvenile who is found to
have committed an offence. The records of his case are removed after the
expiry of period of appeal or a reasonable period.
S. 40 of the JJ Act provides that the rehabilitation and social
reintegration of the juvenile begins during his stay in a children’s home
or special home. “After-care organizations” recognized by the State Govt.
conduct programmes for taking care of juveniles who have left special homes
to enable them to lead honest, industrious and useful lives.
Differences between JJ System and Criminal Justice System
1. FIR and charge-sheet in respect of juvenile offenders is filed
only in ‘serious cases’, where adult punishment exceeds 7 years.
2. A juvenile in conflict with the law is not “arrested”, but
“apprehended”, and only in case of allegations of a serious crime.
3. Once apprehended, the police must immediately place such juvenile
under the care of a Welfare Officer, whose duty is to produce the
juvenile before the Board. Thus, the police do not retain pre-
trial custody over the juvenile.
4. Under no circumstances is the juvenile to be detained in a jail or
police lock-up, whether before, during or after the Board inquiry.
5. Grant of Bail to juveniles in conflict with the law is the Rule.
6. The JJ board conducts a child-friendly “inquiry” and not an
adversarial trial. This is not to say that the nature of the
inquiry is non-adversarial, since both prosecution and defence
submit their cases. Instead, the nature of the proceedings
acquires a child-friendly colour.
7. The emphasis of criminal trials is to record a finding on the
guilt or innocence of the accused. In case of established guilt,
the prime object of sentencing is to punish a guilty offender. The
emphasis of juvenile ‘inquiry’ is to find the guilt/innocence of
the juvenile and to investigate the underlying social or familial
causes of the alleged crime. Thus, the aim of juvenile sentencing
is to reform and rehabilitate the errant juvenile.
8. The adult criminal system does not regulate the activities of the
offender once s/he has served the sentence. Since the JJ system
seeks to reform and rehabilitate the juvenile, it establishes post-
trial avenues for the juvenile to make an honest living.
39. Having laid bare all that is necessary for a purposive adjudication
of the issues that have been raised by the rival camps we may now proceed
to examine the same.
The Act, as manifestly clear from the Statement of Objects and
Reasons, has been enacted to give full and complete effect to the country’s
international obligations arising from India being a signatory to the three
separate conventions delineated hereinbefore, namely, the Beijing Rules,
the UN Convention and the Havana Rules. Notwithstanding the avowed object
of the Act and other such enactments to further the country’s international
commitments, all of such laws must necessarily have to conform to the
requirements of a valid legislation judged in the context of the relevant
constitutional provisions and the judicial verdicts rendered from time to
time. Also, that the Act is a beneficial piece of legislation and must
therefore receive its due interpretation as a legislation belonging to the
said category has been laid down by a Constitution Bench of this Court in
Pratap Singh vs. State of Jharkhand and Another[10]. In other words, the
Act must be interpreted and understood to advance the cause of the
legislation and to confer the benefits of the provisions thereof to the
category of persons for whom the legislation has been made.
40. Dr. Swamy at the outset has urged that there is no attempt on his
part to challenge the constitutional validity of the Act, particularly, the
provisions contained in Sections 2(k) and 2(l) of the Act and what he seeks
is a mere reading down of the Act. It is not very difficult to understand
the reason for the argument; Dr. Swamy seeks to overcome what he perceives
to be a bar to a direct challenge on account of the decision of this Court
in Salil Bali (supra). But if the argument advanced if is to be carried to
the fullest extent the implication is obvious. If the Act is not to be
read down, as urged, it will stand invalidated on grounds of
unconstitutionality. The argument, therefore, is really the other side of
the same coin which has been cast by Dr. Hingorani who is more forthright
in his challenge to the validity of the Act on the twin grounds already
noticed, namely, that the Act would result in over-classification if all
juveniles, irrespective of the level of mental maturity, are to be grouped
in one class and on the further ground that the Act replaces the criminal
justice system in the country and therefore derogates a basic feature of
the Constitution. If the arguments are to be understood and examined from
the aforesaid perspective, the conclusion is obvious – what the Court is
required to consider, apart from the incidental and side issues which would
not be of much significance, is whether the Act would survive the test of
constitutionality if the same is not to be read and understood in the
manner urged. Of course, if the constitutionality of the Act is to become
suspect, the further question, as we have already indicated, is what should
be the course of action that would be open to this Coordinate Bench in view
of the decision in Salil Bali (supra).
41. Dr. Swamy would urge that the relevant provisions of the Act i.e.
Sections 1(4), 2(k), 2(l) and 7 must be read to mean that juveniles
(children below the age of 18) who are intellectually, emotionally and
mentally mature enough to understand the implications of their acts and who
have committed serious crimes do not come under the purview of the Act.
Such juveniles are liable to be dealt with under the penal law of the
country and by the regular hierarchy of courts under the criminal justice
system administered in India. This is what was intended by the
legislature; a plain reading, though, shows an unintended omission which
must be made up or furnished by the Court. It is further urged that if the
Act is not read in the above manner the fall out would render the same in
breach of Article 14 as inasmuch as in that event there would be a
blanket/flat categorisation of all juveniles, regardless of their mental
and intellectual maturity, committing any offence, regardless of its
seriousness, in one homogenous block in spite of their striking
dissimilarities. This, Dr. Swamy contends, is a classification beyond what
would be permissible under Article 14 in as much as the result of such
classification does not further the targeted object i.e. to confer the
benefits of the Act to persons below 18 who are not criminally responsible
in view of the low level of mental maturity reached or achieved. This, in
substance, is also the argument of Dr. Hingorani, who, in addition, has
contended that the Act replaces the criminal justice system of the country
by a scheme which is not even a poor substitute. The substituted scheme
does not even remotely fit with constitutional tapestry woven by certain
basic features namely the existence of a criminal justice system.
42. Reading down the provisions of a statute cannot be resorted to when
the meaning thereof is plain and unambiguous and the legislative intent is
clear. The fundamental principle of the “reading down” doctrine can be
summarized as follows. Courts must read the legislation literally in the
first instance. If on such reading and understanding the vice of
unconstitutionality is attracted, the courts must explore whether there has
been an unintended legislative omission. If such an intendment can be
reasonably implied without undertaking what, unmistakably, would be a
legislative exercise, the Act may be read down to save it from
unconstitutionality. The above is a fairly well established and well
accepted principle of interpretation which having been reiterated by this
Court time and again would obviate the necessity of any recall of the huge
number of precedents available except, perhaps, the view of Sawant, J.
(majority view) in Delhi Transport Corporation vs. D.T.C. Mazdoor Congress
and Others[11] which succinctly sums up the position is, therefore,
extracted below.
“255. It is thus clear that the doctrine of reading down or of
recasting the statute can be applied in limited situations. It is
essentially used, firstly, for saving a statute from being struck
down on account of its unconstitutionality. It is an extension of
the principle that when two interpretations are possible — one
rendering it constitutional and the other making it
unconstitutional, the former should be preferred. The
unconstitutionality may spring from either the incompetence of the
legislature to enact the statute or from its violation of any of
the provisions of the Constitution. The second situation which
summons its aid is where the provisions of the statute are vague
and ambiguous and it is possible to gather the intentions of the
legislature from the object of the statute, the context in which
the provision occurs and the purpose for which it is made. However,
when the provision is cast in a definite and unambiguous language
and its intention is clear, it is not permissible either to mend or
bend it even if such recasting is in accord with good reason and
conscience. In such circumstances, it is not possible for the court
to remake the statute. Its only duty is to strike it down and leave
it to the legislature if it so desires, to amend it. What is
further, if the remaking of the statute by the courts is to lead to
its distortion that course is to be scrupulously avoided. One of
the situations further where the doctrine can never be called into
play is where the statute requires extensive additions and
deletions. Not only it is no part of the court’s duty to undertake
such exercise, but it is beyond its jurisdiction to do so.”
43. In the present case there is no difficulty in understanding the clear
and unambiguous meaning of the different provisions of the Act. There is
no ambiguity, muchless any uncertainty, in the language used to convey what
the legislature had intended. All persons below the age of 18 are put in
one class/group by the Act to provide a separate scheme of investigation,
trial and punishment for offences committed by them. A class of persons is
sought to be created who are treated differently. This is being done to
further/effectuate the views of the international community which India
has shared by being a signatory to the several conventions and treaties
already referred to.
44. Classification or categorization need not be the outcome of a
mathematical or arithmetical precision in the similarities of the persons
included in a class and there may be differences amongst the members
included within a particular class. So long as the broad features of the
categorization are identifiable and distinguishable and the categorization
made is reasonably connected with the object targeted, Article 14 will not
forbid such a course of action. If the inclusion of all under 18 into a
class called ‘juveniles’ is understood in the above manner, differences
inter se and within the under 18 category may exist. Article 14 will,
however, tolerate the said position. Precision and arithmetical accuracy
will not exist in any categorization. But such precision and accuracy is
not what Article 14 contemplates. The above principles have been laid down
by this Court in a plethora of judgments and an illustrative reference to
some may be made by recalling the decisions in Murthy Match Works and
Others vs. The Asstt. Collector of Central Excise and Another[12], Roop
Chand Adlakha and Others vs. Delhi Development Authority and Others[13],
Kartar Singh vs. State of Punjab[14], Basheer alias N.P. Basheer vs.State
of Kerala[15], B. Manmad Reddy and Others vs. Chandra Prakash Reddy and
Others[16], Transport and Dock Workers Union and Others vs. Mumbai Port
Trust and Another[17] .
45. If the provisions of the Act clearly indicate the legislative intent
in the light of the country’s international commitments and the same is in
conformity with the constitutional requirements, it is not necessary for
the Court to understand the legislation in any other manner. In fact, if
the Act is plainly read and understood, which we must do, the resultant
effect thereof is wholly consistent with Article 14. The Act, therefore,
need not be read down, as suggested, to save it from the vice of
unconstitutionality for such unconstitutionality does not exist.
46. That in certain foreign jurisdictions, details of which have been
mentioned earlier to bring about clarity and completeness to the issues
arising, the position is otherwise would hardly be of any consequence so
far as our country is concerned. Contrary international opinion, thinking
or practice, even if assumed, does not dictate the legislation of a
sovereign nation. If the legislature has adopted the age of 18 as the
dividing line between juveniles and adults and such a decision is
constitutionally permissible the enquiry by the Courts must come to an end.
Even otherwise there is a considerable body of world opinion that all
under 18 persons ought to be treated as juveniles and separate treatment
ought to be meted out to them so far as offences committed by such persons
are concerned. The avowed object is to ensure their rehabilitation in
society and to enable the young offenders to become useful members of the
society in later years. India has accepted the above position and
legislative wisdom has led to the enactment of the JJ Act in its present
form. If the Act has treated all under 18 as a separate category for the
purposes of differential treatment so far as the commission of offences
are concerned, we do not see how the contentions advanced by the
petitioners to the contrary on the strength of the thinking and practices
in other jurisdictions can have any relevance.
47. In the earlier paragraphs of this report we have analyzed in detail
the difference between the criminal justice system and the system for
dealing with offenders under the JJ Act. The Act does not do away or
obliterate the enforcement of the law insofar as juvenile offenders are
concerned. The same penal law i.e. Indian Penal Code apply to all
juveniles. The only difference is that a different scheme for trial and
punishment is introduced by the Act in place of the regular provisions
under the Code of Criminal Procedure for trial of offenders and the
punishments under the Indian Penal Code. The above situation is vastly
different from what was before the Court in Mithu (supra) and also in Dadu
(supra). In Mithu (supra) a separate treatment of the accused found guilty
of a second incident of murder during the currency of the sentence for an
earlier offence of murder was held to be impermissible under Article 14.
Besides the absence of any judicial discretion, whatsoever, in the matter
of imposition of sentence for a second Act of murder was held to be “out of
tune” with the constitutional philosophy of a fair, just and reasonable
law. On the other hand in Dadu (supra), Section 32A of the NDPS Act which
had ousted the jurisdiction of the Court to suspend a sentence awarded
under the Act was read down to mean that the power of suspension,
notwithstanding Section 32A of the NDPS Act, can still be exercised by the
appellate court but subject to the conditions stipulated in Section 37
namely (i) there are reasonable grounds for believing that the accused is
not guilty of such offence; and (ii) that he is not likely to commit any
offence while on bail are satisfied. Nothing as sweeping and as drastic in
Mithu (supra) and Dadu (supra) has been introduced by the provisions of the
Act so as to enable us to share the view expressed by Dr. Hingorani that
the Act sets at naught all the essential features of the criminal justice
system and introduces a scheme which is abhorrent to our constitutional
values. Having taken the above view, we do not consider it necessary to
enter in the consequential arena, namely, the applicability of the
provisions of Article 20(3) of the Constitution and Section 300 of the Code
of Criminal Procedure to the facts of the present case as on the view that
we have taken no question of sending the juvenile – Raju to face a regular
trial can and does arise.
48. Before parting, we would like to observe that elaborate statistics
have been laid before us to show the extent of serious crimes committed by
juveniles and the increase in the rate of such crimes, of late. We refuse
to be tempted to enter into the said arena which is primarily for the
legislature to consider. Courts must take care not to express opinions on
the sufficiency or adequacy of such figures and should confine its scrutiny
to the legality and not the necessity of the law to be made or continued.
We would be justified to recall the observations of Justice Krishna Iyer in
Murthy March Works (supra) as the present issues seem to be adequately
taken care of by the same:
“13. Right at the threshold we must warn ourselves of the limitations
of judicial power in this jurisdiction. Mr Justice Stone of the
Supreme Court of the United States has delineated these limitations in
United States v. Butler (1936) 297 US 1 thus:
“The power of Courts to declare a statute unconstitutional is
subject to two guiding principles of decision which ought never
to be absent from judicial consciousness. One is that Courts are
concerned only with the power to enact statutes, not with their
wisdom. The other is that while unconstitutional exercise of
power by the executive and legislative branches of the
government is subject to judicial restraint, the only check upon
our exercise of power is our own sense of self-restraint For the
removal of unwise laws from the statute books appeal lies not to
the Courts but to the ballot and to the processes of democratic
Government.”
14. In short, unconstitutionality and not unwisdom of a legislation is
the narrow area of judicial review. In the present case
unconstitutionality is alleged as springing from lugging together two
dissimilar categories of match manufacturers into one compartment for
like treatment.
15. Certain principles which bear upon classification may be mentioned
here. It is true that a State may classify persons and objects for the
purpose of legislation and pass laws for the purpose of obtaining
revenue or other objects. Every differentiation is not a
discrimination. But classification can be sustained only if it is
founded on pertinent and real differences as distinguished from
irrelevant and artificial ones. The constitutional standard by which
the sufficiency of the differentia which form a valid basis for
classification may be measured, has been repeatedly stated by the
Courts. If it rests on a difference which bears a fair and just
relation to the object for which it is proposed, it is constitutional.
To put it differently, the means must have nexus with the ends. Even
so, a large latitude is allowed to the State for classification upon a
reasonable basis and what is reasonable is a question of practical
details and a variety of factors which the Court will be reluctant and
perhaps ill-equipped to investigate. In this imperfect world
perfection even in grouping is an ambition hardly ever accomplished.
In this context, we have to remember the relationship between the
legislative and judicial departments of Government in the
determination of the validity of classification. Of course, in the
last analysis Courts possess the power to pronounce on the
constitutionality of the acts of the other branches whether a
classification is based upon substantial differences or is arbitrary,
fanciful and consequently illegal. At the same time, the question of
classification is primarily for legislative judgment and ordinarily
does not become a judicial question. A power to classify being
extremely broad and based on diverse considerations of executive
pragmatism, the Judicature cannot rush in where even the Legislature
warily treads. All these operational restraints on judicial power must
weigh more emphatically where the subject is taxation.”
(Emphasis is ours)
49. On the above note we deem it appropriate to part with the cases by
dismissing the appeal filed by Dr. Subramanian Swamy and Others as well as
the writ petition filed by the parents of the unfortunate victim of the
crime.
...…………………………CJI.
[P. SATHASIVAM]
.........………………………J.
[RANJAN GOGOI]
…..........……………………J.
[SHIVA KIRTI SINGH]
NEW DELHI,
MARCH 28, 2014.
-----------------------
[1] (2013) 3 SCALE 1
[2] (1983) 2 SCC 277
[3] (2000) 8 SCC 437
[4] (2013) 4 SCC 705
[5] (1989) 3 SCC 151
[6] (2012) 10 SCC 1
[7] Committee on the Rights of the Child, 61st Session, 05 October 2012,
CRC/C/CAN/CO/3-4, paras 85-86, p.20.
[8] 543 US 551 (2005)
[9] 560 US 48 (2010)
[10] (2005) 3 SCC 551
[11] 1991 Supp. (1) SCC 600
[12] (1974) 4 SCC 428
[13] 1989 Supp (1) SCC 116
[14] (1994) 3 SCC 569
[15] (2004) 3 SCC 609
[16] (2010) 3 SCC 314
[17] (2011) 2 SCC 575
-----------------------
60
On 16th December, 2012 a young lady (23 years in age) and her friend
were returning home after watching a movie in a multiplex located in one of
the glittering malls of Delhi. They boarded a bus to undertake a part of
the journey back home. While the bus was moving, 5 persons brutally
assaulted the young lady, sexually and physically, and also her friend.
Both of them were thrown out of the bus. The young lady succumbed to her
injuries on 29.12.2012. =
One of
them, identified for the purpose of the present case as Raju, was below 18
years of age on the date of commission of the crime. Accordingly, in
compliance with the provisions of the Juvenile Justice Act, 2000 ( as
amended and hereinafter referred to as ‘the Act’) his case was referred for
inquiry to the Juvenile Justice Board. =
Before the Juvenile Justice Board to whom the case of Raju was
referred for inquiry, the petitioners had filed applications for their
impleadment to enable them to ‘prosecute’ the juvenile alongside the public
prosecutor. =
whether the
offence(s) allegedly committed by the juvenile is to be inquired into by
the Board or the juvenile is required to be tried in a regular criminal
court is concerned, the Board had expressed its inability to decide the
same and had directed the petitioners to seek a authoritative pronouncement
on the said issue(s) from the High Court.=
This writ petition has been filed by the parents of the victim of the
incident that had occurred on 16.12.2012 seeking the following reliefs :
“(i) a Direction striking down as unconstitutional and void the
Juvenile Justice (Care and Protection of Children) Act 2000 (Act No.56
of 2000) to the extent it puts a blanket ban on the power of the
criminal courts to try a juvenile offender for offences committed
under the Indian Penal Code, 1860; and
(ii) a Direction that the Respondent No.2 be tried forthwith by
the competent criminal court for the offences against the daughter of
the petitioners in F.I.R. No.413/12, P.S. Vasant Vihar, New Delhi
under sections 302/365/376(2)G/377/307/ 394/395/397/396/412/201/
120B/34 IPC.”=
The Act does not do away or
obliterate the enforcement of the law insofar as juvenile offenders are
concerned. The same penal law i.e. Indian Penal Code apply to all
juveniles. The only difference is that a different scheme for trial and
punishment is introduced by the Act in place of the regular provisions
under the Code of Criminal Procedure for trial of offenders and the
punishments under the Indian Penal Code. The above situation is vastly
different from what was before the Court in Mithu (supra) and also in Dadu
(supra). In Mithu (supra) a separate treatment of the accused found guilty
of a second incident of murder during the currency of the sentence for an
earlier offence of murder was held to be impermissible under Article 14.
Besides the absence of any judicial discretion, whatsoever, in the matter
of imposition of sentence for a second Act of murder was held to be “out of
tune” with the constitutional philosophy of a fair, just and reasonable
law. On the other hand in Dadu (supra), Section 32A of the NDPS Act which
had ousted the jurisdiction of the Court to suspend a sentence awarded
under the Act was read down to mean that the power of suspension,
notwithstanding Section 32A of the NDPS Act, can still be exercised by the
appellate court but subject to the conditions stipulated in Section 37
namely (i) there are reasonable grounds for believing that the accused is
not guilty of such offence; and (ii) that he is not likely to commit any
offence while on bail are satisfied. Nothing as sweeping and as drastic in
Mithu (supra) and Dadu (supra) has been introduced by the provisions of the
Act so as to enable us to share the view expressed by Dr. Hingorani that
the Act sets at naught all the essential features of the criminal justice
system and introduces a scheme which is abhorrent to our constitutional
values. Having taken the above view, we do not consider it necessary to
enter in the consequential arena, namely, the applicability of the
provisions of Article 20(3) of the Constitution and Section 300 of the Code
of Criminal Procedure to the facts of the present case as on the view that
we have taken no question of sending the juvenile – Raju to face a regular
trial can and does arise.
Conculsion
On the above note we deem it appropriate to part with the cases by
dismissing the appeal filed by Dr. Subramanian Swamy and Others as well as
the writ petition filed by the parents of the unfortunate victim of the
crime.
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 695 OF 2014
(Arising Out of SLP (Crl.) No.1953 of 2013)
DR. SUBRAMANIAN SWAMY & ORS. ... APPELLANT (S)
VERSUS
RAJU THR. MEMBER JUVENILE ... RESPONDENT (S)
JUSTICE BOARD & ANR.
With
W.P. (Crl.) No.204 of 2013
J U D G M E N T
RANJAN GOGOI, J.
SLP (Crl.) No.1953 of 2013
1. On 16th December, 2012 a young lady (23 years in age) and her friend
were returning home after watching a movie in a multiplex located in one of
the glittering malls of Delhi. They boarded a bus to undertake a part of
the journey back home. While the bus was moving, 5 persons brutally
assaulted the young lady, sexually and physically, and also her friend.
Both of them were thrown out of the bus. The young lady succumbed to her
injuries on 29.12.2012.
2. Five persons were apprehended in connection with the crime. One of
them, identified for the purpose of the present case as Raju, was below 18
years of age on the date of commission of the crime. Accordingly, in
compliance with the provisions of the Juvenile Justice Act, 2000 ( as
amended and hereinafter referred to as ‘the Act’) his case was referred for
inquiry to the Juvenile Justice Board. The other accused were tried in a
regular sessions court and have been found guilty, inter alia, of the
offences under Section 376 (2)(g) and Section 302 of the Indian Penal Code,
1860 (for short “the Penal Code”). They have been sentenced to death by
the learned trial court. Their appeal against the aforesaid conviction and
the sentence imposed has since been dismissed and the death penalty has
been confirmed by the High Court of Delhi.
3. Before the Juvenile Justice Board to whom the case of Raju was
referred for inquiry, the petitioners had filed applications for their
impleadment to enable them to ‘prosecute’ the juvenile alongside the public
prosecutor. The petitioners also claimed that, on a proper interpretation
of the Act, the juvenile was not entitled to the benefits under the Act but
was liable to be tried under the penal law of the land in a regular
criminal court alongwith the other accused.
4. According to the petitioners, after an elaborate hearing, the Board
had fixed the case on 25.01.2013 for pronouncement of order on the question
of maintainability of the application filed by the petitioners and also on
their prayer for impleadment. However, insofar as the interpretation of
the provisions of the Act for determination of the question whether the
offence(s) allegedly committed by the juvenile is to be inquired into by
the Board or the juvenile is required to be tried in a regular criminal
court is concerned, the Board had expressed its inability to decide the
same and had directed the petitioners to seek a authoritative pronouncement
on the said issue(s) from the High Court.
5. Accordingly, the petitioners had instituted a writ proceeding before
the High Court of Delhi, which was registered as Writ Petition (Crl.) No.
124 of 2013, seeking the following reliefs :-
“i. Laying down an authoritative interpretation of Sections 2(I) and
2(k) of the Act that the criterion of 18 years set out therein
does not comprehend cases grave offences in general and of
heinous crimes against women in particular that shakes the root
of humanity in general.
ii. That the definition of offences under Section 2(p) of the Act be
categorized as per grievousness of the crime committed and the
threat of public safety and order.
iii. That Section 28 of the Act be interpreted in terms of its
definition, i.e., alternative punishment and serious offences
having minimum punishment of seven years imprisonment and above
be brought outside its purview and the same should be tried by
an ordinary criminal court.
iv. Incorporating in the Act, the International concept of age of
criminal responsibility and diluting the blanket immunity
provided to the juvenile offender on the basis of age.
v. That the instant Act be read down in consonance with the rights
of victim as protected by various fundamental rights including
Article 14 and 21 of the Constitution of India.” (sic)
“
6. The High Court by its order dated 23.01.2013 dismissed the writ
petition holding that against the order of the Juvenile Justice Board the
alternative remedies available under the Act should be exhausted in the
first instance and in the course thereof the question of interpretation of
the provisions of the Act can well be considered.
7. On the very next day, the Board by an elaborate order dated
24.01.2013 rejected the prayer of the petitioners for impleadment in the
proceeding against the delinquent and seeking participation therein. In
the aforesaid circumstances, on 19.02.2013, Special Leave Petition (Crl.)
No.1953 of 2013 was lodged before this Court challenging the aforesaid
order of the High Court of Delhi.
8. The maintainability of the Special Leave Petition was seriously
disputed by the respondent No.1 i.e. juvenile Raju as well as the Union of
India. In support, it was, inter alia, contended that the administration
of criminal justice in India does not envisage the role of a third
party/stranger. Primarily, it is the State which is entrusted with the
duty of prosecution in the discharge of which a limited role so far as the
complainant/first informant of an offence is concerned and that too in
specified situations, is contemplated by the provisions of the Code of
Criminal Procedure. The preliminary objection of the respondents to the
maintainability of the Special Leave Petition was heard at length by this
Court and by order dated 22.08.2013 it was held as follows:
“All that the petitioners seek is an authoritative pronouncement of
the true purport and effect of the different provisions of the JJ Act
so as to take a juvenile out of the purview of the said Act in case he
had committed an offence, which, according to the petitioners, on a
true interpretation of Section 2(p) of the Act, is required to be
identified and distinguished to justify a separate course of action,
namely, trial in a regular Court of law as a specific offence under
the Penal Code and in accordance with the provisions of the Code of
Criminal Procedure. The adjudication that the petitioners seek
clearly has implications beyond the case of the first respondent and
the proceedings in which he is or may be involved. In fact,
interpretation of the relevant provisions of the JJ Act in any manner
by this Court, if made, will not be confined to the first respondent
alone but will have an effect on all juveniles who may come into
conflict with law both in the immediate and distant future. If we are
to view the issue of maintainability of the present proceeding from
the aforesaid perspective reference to the case of the first
respondent in the pleadings must be understood to be illustrative. If
this Court is to interpret the provisions of the Act in the manner
sought by the petitioners, the possible effect thereof in so far as
the first Respondent is concerned will pale into insignificance in the
backdrop of the far reaching consequences that such an interpretation
may have on an indeterminate number of persons not presently before
the Court. We are, therefore, of the view that it would be
appropriate for us) hold that the special leave petition does not
suffer from the vice of absence of locus on the part of the
petitioners so as to render the same not maintainable in law. We,
therefore, will proceed to hear the special leave petition on merits
and attempt to provide an answer to the several questions raised by
the petitioners before us.” (sic)
9. Notice in the special leave petition was accordingly issued in
response to which detailed counter affidavit has been filed on behalf of
the Union as well as the respondent-juvenile Raju. In addition, Crl. Misc.
Petition No.22586/2013 (by Smt. June Chaudhari, Senior Advocate), Crl.
Misc. Petition No.25075/2013 (on behalf of Centre for Child and the Law,
National Law School of India University and Ors.), Crl. Misc. Petition
No.15792/2013 (on behalf of Prayas Juvenile Aid Centre, Tughlakabad,
Institutional Area, New Delhi) and Crl. Misc. Petition No.23226/2013 (by
Dr. Madhuker Sharma) for interventions have been filed, all of which have
been allowed. The matter was elaborately heard on different dates by this
Court in the course of which written notes and arguments as well as
documents relevant to the issues have been placed before the Court by the
contesting parties. In view of the elaborate consideration on the basis of
the arguments advanced and the materials placed we deem it proper to grant
leave to appeal and to decide the case on merits upon full consideration of
the rival contentions.
Writ Petition (Crl.) No.204 of 2013
10. This writ petition has been filed by the parents of the victim of the
incident that had occurred on 16.12.2012 seeking the following reliefs :
“(i) a Direction striking down as unconstitutional and void the
Juvenile Justice (Care and Protection of Children) Act 2000 (Act No.56
of 2000) to the extent it puts a blanket ban on the power of the
criminal courts to try a juvenile offender for offences committed
under the Indian Penal Code, 1860; and
(ii) a Direction that the Respondent No.2 be tried forthwith by
the competent criminal court for the offences against the daughter of
the petitioners in F.I.R. No.413/12, P.S. Vasant Vihar, New Delhi
under sections 302/365/376(2)G/377/307/ 394/395/397/396/412/201/
120B/34 IPC.”
11. The issues raised being similar to those arising in Special Leave
Petition (Crl.) No.1953 of 2013, both cases were heard together and are
being disposed of by means of this common order.
12. We have heard Dr. Subramanian Swamy, the first appellant appearing in
person and also representing the other appellants as well as Dr. Aman
Hingorani, learned counsel appearing on behalf of the petitioners in W.P.
(Crl.) No.204 of 2013. We have also heard Shri Sidharth Luthra, learned
Additional Solicitor General, appearing for the Union of India and Shri
A.J. Bhambhani, learned counsel appearing for the juvenile respondent
No.1–Raju apart from the intervenors appearing in person or through their
respective counsels.
13. Dr. Subramanian Swamy has, at the outset, clarified that he is
neither challenging the provisions of Section 2(k) and 2(l) of the Act nor
is he invoking the jurisdiction of the Court to strike down any other
provision of the Act or for interference of the Court to reduce the minimum
age of juveniles fixed under the Act as 18 years. What Dr. Swamy has
contended is that having regard to the object behind the enactment, the Act
has to be read down to understand that the true test of “juvenility” is not
in the age but in the level of mental maturity of the offender. This, it
is contended, would save the Act from unconstitutionality and also further
its purpose. The Act is not intended to apply to serious or heinous crimes
committed by a juvenile. The provisions of Sections 82 and 83 of the
Indian Penal Code have been placed to contend that while a child below 7
cannot be held to be criminally liable, the criminality of those between 7
and 12 years has to be judged by the level of their mental maturity. The
same principle would apply to all children beyond 12 and upto 18 years
also, it is contended. This is how the two statutes i.e. Indian Penal Code
and the Act has to be harmoniously understood. The provisions of Section
1(4) of the Act which makes the provisions of the Act applicable to all
cases of detention, prosecution and punishment of juveniles in conflict
with law, to the exclusion of all other laws, would be unconstitutional if
the Act is not read down. Specifically, Dr. Swamy contends that in
that event the Act will offend Article 14 of the Constitution as all
offenders below the age of 18 years irrespective of the degree/level of
mental maturity and irrespective of the gravity of the crime committed
would be treated at par. Such a blanket treatment of all offenders below
the age of 18 committing any offence, regardless of the seriousness and
depravity, is wholly impermissible under our constitutional scheme. The
non-obstante provisions contained in Section 1(4) of the Act as well as the
bar imposed by Section 7 on the jurisdiction of the criminal court to try
juvenile offenders cannot apply to serious and heinous crime committed by
juveniles who have reached the requisite degree of mental maturity, if the
Act is to maintain its constitutionality. Reliance is also placed on Essa
@ Anjum Abdul Razak Memon vs. State of Maharashtra[1] to contend that the
purport and effect of Section 1(4) of the Act must be understood in a
limited manner.
14. By referring to the provisions of the United Nations Standard Minimum
Rules for the Administration of Juvenile Justice, 1985 (Beijing Rules);
the Convention of the Rights of the Child, 1990 (CRC) and the United
Nations Rules for the Protection of Juveniles Deprived of their Liberty,
1990(Havana Rules), Dr. Swamy has contended that the international
commitments entered into by India obliges it to set up a particular
framework to deal with juvenile offenders and such obligations can be more
comprehensively met and effectuated by understanding the Act in the
aforesaid manner. The practice in vogue in several foreign jurisdictions,
particularly, in the U.K., USA and Canada for adjudicating criminal
liability of young offenders has also been placed before the Court.
Specifically, it is pointed out that the practice of statutory exclusion
which ensures that perpetrators of certain grave offences are prosecuted as
adults; ‘judicial waiver’, granting discretion to special juvenile courts
to waive jurisdiction and transfer the juvenile’s case to an ordinary court
of law and also the policy of concurrent jurisdiction of both the ordinary
and juvenile courts giving discretion to the prosecutor to initiate
proceedings in the more suitable court are followed in such jurisdictions.
Shri Swamy has also suggested that Section 28 of the Act be read together
with Section 15 to enable the alternatively higher punishment under other
State/Central enactments, such as the IPC to be awarded to a juvenile
offender. It is argued that this would incorporate the policy of
concurrent jurisdiction of both ordinary criminal courts and JJ Boards.
15. Legislative overreach in enacting the Act is the core argument
advanced on behalf of the petitioners in Writ Petition (Crl.) No.204 of
2013. Dr. Aman Hingorani, learned counsel urges that the ban on
jurisdiction of criminal courts by Section 7 of the Act is unconstitutional
inasmuch as it virtually ousts the criminal justice system from dealing
with any offence committed by a juvenile. Parliament cannot make a law to
oust the judicial function of the courts or even judicial discretion in a
matter which falls within the jurisdiction of the courts. Reliance in this
regard is placed on the judgments of this Court in the case of Mithu Vs.
State of Punjab[2] and Dadu Vs. State of Maharashtra[3]. It is argued that
what the Act contemplates in place of a regular criminal trial is a non-
adversarial inquiry against the juvenile where the prime focus is not on
the crime committed but on the reasons that had led the juvenile to such
conduct. The maximum power of ‘punishment’, on proof of guilt, is to send
the juvenile to a special home for three years. The entire scheme under
the Act being substantially different from what is provided by the Code of
Criminal Procedure for investigation of offences and for trial and
punishment of offenders, it is submitted that the Act offends a core
constitutional value namely, the existence of a criminal justice system.
The proceedings against the juvenile Raju held by the JJ Board are,
therefore, null and void and the said juvenile is liable to be tried by a
competent criminal court in accordance with the procedure prescribed. In
this regard, it is also submitted that the concept of double jeopardy under
Article 20(3) of the Constitution and Section 300 of Penal Code will have
no application inasmuch as the proceedings before the JJ Board did/does not
amount to a trial. Contentions somewhat similar to what has been advanced
by Dr. Swamy to explain the degree of constitutional flexibility that the
Act would enjoy has also been urged by Dr. Hingorani who however goes a
step forward to contend that the decision in Salil Bali vs. Union of
India[4] will not be an inhibition for the Court to answer the question(s)
raised as not only the issues arising in Salil Bali (supra) are different
but the said decision is founded on an entirely different legal
perspective.
16. Shri Anoop G. Chaudhary, learned senior counsel appearing for the
intervenor Smt. June Chaudhari and Dr. Madhuker Sharma,
intervenor, appearing in person have supported the case projected by Dr.
Swamy and Dr. Aman Hingorani, noticed above.
17. The arguments advanced on behalf of the appellants as well as the writ
petitioners are hotly contested. Shri Sidharth Luthra, learned Additional
Solicitor General submits that what is contemplated by the Act is in
furtherance of the country’s obligations arising from a series of
international conventions to which India is a signatory. The Act is an
expression of legislative wisdom to treat all persons below 18 as juveniles
and to have an alternate system of dealing with such juveniles who come
into conflict with law. Shri Luthra has submitted that the constitutional
validity of the Act has been upheld by a Coordinate Bench in Salil Bali
(supra). Shri Luthra has also submitted that psychological/mental,
intellectual and emotional maturity of a person below 18 years cannot be
objectively determined on an individual or case to case basis and the
fixation of the Minimum Age of Criminal Responsibility (MACR) under the Act
is a policy decision taken to give effect to the country’s international
commitments. In so far as the specific contentions advanced on behalf of
the writ petitioners in W.P. (Crl.) No.204 of 2013 is concerned, Shri
Luthra has submitted that the Act does not provide a blanket immunity to
juvenile offenders, as contended. What the Act contemplates is a different
procedure to deal with such offenders. If found guilty, they are subjected
to a different scheme of punishment. The learned counsel appearing on
behalf of the juvenile Raju, while supporting the contentions advanced by
Shri Luthra, has further submitted that the United Nations Convention on
the Rights of the Child, 1990 read with the concluding Resolution of the
Committee on Child Rights (constituted under the UN Convention) of the year
2000 qua India and the General Resolution of the year 2007 clearly
contemplate the MACR as 18 years and mandates member States to act
accordingly. Learned counsel on the strength of the elaborate academic and
research work placed on record has tried to persuade the Court to take the
view that :-
(1) Countries like U.K. Canada and USA have departed from the
obligations under the UN Convention and are in breach of their
international commitments. The incidence of crime by juveniles
in those countries is very high which is not so in India. It is
submitted that, of late, a re-thinking on the issue is
discernible to demonstrate which reliance is placed on some
recent pronouncements of the US Supreme Court, details of which
will be noticed hereinafter.
(2) That the level of mental/intellectual maturity in any given case
cannot be determined with any degree of accuracy and precision
and the results vary from case to case and from individual to
individual. A system which provides for an option to refer a
juvenile to a regular court, therefore, ought not to be accepted
as no objective basis for such reference exists.
18. Shri Amod Kanth, representing Prayas Juveniles Aid Centre and learned
counsel for the intervener Centre for Child and the Law, National Law
School of India University and others have supported the stand taken by the
learned Additional Solicitor General. Elaborate written submissions have
been filed to substantiate the argument that having regard to
expert/psychological/medical opinion available the MACR cannot be
determined, with any acceptable degree of precision, on the basis of a case
to case study for which reason the legislative wisdom inherent in the Act
must be accepted and respected. Statistics of the crimes (Crime rate)
committed by juvenile offenders have also been brought on record to contend
that the beneficial nature of the legislation does not call for any relook,
even on the touchstone of Constitutional permissibility.
19. At the very outset, two initial hurdles to the present adjudication,
set up by the respondents, may be conveniently dealt with. The first is
that the constitutional validity of the Act has been upheld in Salil Bali
(supra) and it is not necessary to revisit the said decision even if it be
by way of a reference to a larger Bench. The second is with regard to the
recommendations of the Justice J.S. Verma Committee following which
recommendations, the Criminal Law Amendment Act, 2013 has been enacted by
the legislature fundamentally altering the jurisprudential norms so far as
offences against women/sexual offences are concerned.
20. In Salil Bali (supra) the constitutional validity of the Act,
particularly, Section 2(k) and 2(l) thereof was under challenge, inter
alia, on the very same grounds as have now been advanced before us to
contend that the Act had to be read down. In Salil Bali (supra) a
coordinate Bench did not consider it necessary to answer the specific
issues raised before it and had based its conclusion on the principle of
judicial restraint that must be exercised while examining conscious
decisions that emanate from collective legislative wisdom like the age of a
juvenile. Notwithstanding the decision of this Court in Kesho Ram and
Others Vs. Union of India and Others[5] holding that, “the binding effect
of a decision of this Court does not depend upon whether a particular
argument was considered or not, provided the point with reference to which
the argument is advanced subsequently was actually decided in the earlier
decision…” (para 10) the issue of res judicata was not even remotely raised
before us. In the field of public law and particularly when constitutional
issues or matters of high public interest are involved, the said principle
would operate in a somewhat limited manner; in any case, the petitioners in
the present proceeding were not parties to the decision rendered in Salil
Bali (supra). Therefore, we deem it proper to proceed, not to determine
the correctness of the decision in Salil Bali (supra) but to consider the
arguments raised on the point of law arising. While doing so we shall
certainly keep in mind the course of action that judicial discipline would
require us to adopt, if need be. Though expressed in a somewhat different
context we may remind ourselves of the observations of the Constitution
Bench of this Court in Natural Resources Allocation, In Re, Special
Reference No.1 of 2012[6] extracted below:-
“48.2. The second limitation, a self-imposed rule of judicial
discipline, was that overruling the opinion of the Court on a legal
issue does not constitute sitting in appeal, but is done only in
exceptional circumstances, such as when the earlier decision is per
incuriam or is delivered in the absence of relevant or material
facts or if it is manifestly wrong and capable of causing public
mischief. For this proposition, the Court relied upon the judgment
in Bengal Immunity case (AIR 1955 SC 661) wherein it was held that
when Article 141 lays down that the law declared by this Court shall
be binding on all courts within the territory of India, it quite
obviously refers to courts other than this Court; and that the Court
would normally follow past precedents save and except where it was
necessary to reconsider the correctness of law laid down in that
judgment. In fact, the overruling of a principle of law is not an
outcome of appellate jurisdiction but a consequence of its inherent
power. This inherent power can be exercised as long as a previous
decree vis-à-vis a lis inter partes is not affected. It is the
attempt to overturn the decision of a previous case that is
problematic, which is why the Court observed that: [Cauvery (2) case
(1993 Supp (1) SCC 96 (2), SCC p. 145, para 85]
“85. … Under the Constitution such appellate jurisdiction
does not vest in this Court, nor can it be vested in it by the
President under Article 143.”
21. The issues arising and the contentions advanced therefore will have
to be examined from the aforesaid limited perspective which we are inclined
to do in view of the importance of the questions raised.
22. The next issue that would need a resolution at the threshold is the
effect of the recommendations of the Justice J.S. Verma Committee
constituted by the Government of India by Notification dated 24th December,
2012 following the very same incident of 16th December 2012 so far as the
age of a juvenile is concerned. The terms of reference to the Justice J.S.
Verma Committee were indeed wide and it is correct that the Committee did
not recommend reduction of the age of juveniles by an amendment of the
provisions of the Act. However, the basis on which the Committee had come
to the above conclusion is vastly different from the issues before this
Court. The recommendations of the Justice J.S. Verma Committee which
included the negative covenant so far as any amendment to the JJ Act is
concerned was, therefore, in a different context though we must hasten to
add the views expressed would undoubtedly receive our deepest consideration
while dealing with the matter in hand.
23. The stage is now appropriate to have a look at the international
conventions, holding the field, to which India has been a signatory.
The UN Standard Minimum Rules for the Administration of Juvenile
Justice (“the Beijing Rules”) were adopted by the General Assembly of the
United Nations in 1985. Rule 2.2(a) defines a juvenile as a child or young
person who, under the respective legal system, may be dealt with for an
offence differently than an adult. Rule 4.1 set out below mandates Member
States to refrain from fixing a minimum age of criminal responsibility that
is too low, bearing in mind the facts of emotional, mental and intellectual
maturity.
“4.1 In those legal systems recognizing the concept of the age of
criminal responsibility for juveniles, the beginning of that age shall
not be fixed at too low an age level, bearing in mind the facts of
emotional, mental and intellectual maturity.”
24. The Beijing Rules take into account penological objectives in
addition to rehabilitation of the offender. In Rule 17.1, the guiding
principles of adjudicating matters involving juveniles are enlisted:
a) The reaction shall always be proportional to not only the
circumstances and the gravity of the offence, but also to the
circumstances and needs of the juvenile as well as to the needs of
society;
b) Restrictions on personal liberty of the juvenile shall be imposed
only after careful consideration and shall be limited to the
possible minimum;
c) Deprivation of personal liberty shall not be imposed unless the
juvenile is adjudicated of a serious act involving violence against
another person or of persistence in committing other serious
offences and unless there is no other appropriate response;
d) The well-being of the juvenile shall be the guiding factor while
considering his case.
It is clear that the Beijing Rules do not prohibit detention of a juvenile
if he is proved to have committed a violent, serious offence, or to have
repeatedly committed such serious offences though Rule 17.2 of the Beijing
Rules prohibits the imposition of capital punishment of juveniles. Thus,
the Rules do not advocate leniency in dealing with such offenders but only
contemplate that detention be limited to the most serious cases where no
other alternative is found appropriate after careful consideration.
25. The Convention on the Rights of the Child, 1990 (“CRC”), in Article
1, adopts a chronological definition of a “child”, viz. less than 18 years
old, unless majority under national legislation is attained earlier:
“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.”
Article 37(a) of the CRC prohibits the imposition of capital
punishment and life imprisonment without possibility of release on
offenders below 18 years of age. The CRC further obliges State Parties to
establish a minimum age below which children shall be presumed not to have
the capacity to infringe the penal law (Article 40(3)(a)).
26. Rule 1.2 of the Havana Rules provide that a juvenile should be
deprived of his/her liberty only as a measure of the last resort limited to
exceptional cases and for the minimum necessary period. Even then,
detention should be in such a manner and in conditions that respect the
human rights of juveniles (Rule 12).
Rule 11(a) of the Havana Rules, 1990 define a juvenile as every
person under the age of 18, and allow national laws to determine a minimum
age below which such person will not be detained.
27. Under Article 43 of the CRC, constitution of a Committee for the
purpose of examining the progress made by the State parties on the rights
of the child is contemplated. The first meeting of the Committee under
Article 44 was to be within 2 years of the coming into force of the
convention so far as a particular State party, in respect of whom review of
the progress is made, is concerned. Thereafter, the Committee is required
to meet every 5 years. In January, 2000, the Committee considered the
initial report of India submitted on 19.03.1997 and adopted certain
“concluding observations” the relevant part of which are extracted
hereinbelow:
“79. The Committee is concerned over the administration of juvenile
justice in India and its incompatibility with articles 37, 40 and 39
of the Convention and other relevant international standards. The
Committee is also concerned at the very young age of criminal
responsibility – 7 years – and the possibility of trying boys between
16 and 18 years of age as adults. Noting that the death penalty is de
facto not applied to persons under 18, the Committee is very concerned
that de jure, this possibility exists. The Committee is further
concerned at the overcrowded and unsanitary conditions of detention of
children, including detention with adults; lack of application and
enforcement of existing juvenile justice legislation; lack of training
for professionals, including the judiciary, lawyers and law
enforcement officers, in relation to the Convention, other existing
international standards and the 1986 Juvenile Justice Act; and the
lack of measures and enforcement thereof to prosecute officials who
violate these provisions.
80. The Committee recommends that the State party review its laws in
the administration of juvenile justice to ensure that they are in
accordance with the Convention, especially Articles 37, 40 and 39, and
other relevant international standards such as the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice (the
Beijing Rules), the United Nations Guidelines for the Prevention of
Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules
for the Protection of Juveniles Deprived of their Liberty and the
Vienna Guidelines for Action on Children in the Criminal Justice
System.
81. The Committee recommends that the State party abolish by law the
imposition of the death penalty on persons under 18. The Committee
also recommends that the State party consider raising the age of
criminal responsibility and ensure that persons under 18 years are not
tried as adults. In accordance with the principle of non-
discrimination contained in article 2 of the Convention, the Committee
recommends article 29(h) of the 1986 Juvenile Justice Act be amended
to ensure that boys under 18 years are covered by the definition of
juvenile, as girls already are. The Committee recommends that the
1986 Juvenile Justice Act be fully enforced and that the judiciary and
lawyers be trained and made aware of it. The Committee further
recommends that measures be taken to reduce overcrowding, to release
those who cannot be given a speedy trial and to improve prison
facilities as quickly as possible. The Committee recommends that the
State party ensure regular, frequent and independent monitoring of
institutions for juvenile offenders.”
It is pursuant to the aforesaid concluding observations of the Committee
made in the year 2000 that the JJ Act was amended in the later part of that
year by having a uniform age of 18 for both male and female juveniles.
28. It needs to be clarified that the concluding observations of the
Committee under Article 45 of the UN Convention (CRC) are qua a particular
State party whereas general comments of the Committee under the same
Article are authoritative interpretations addressed to all State parties.
The above distinction between “concluding observations” and “general
comments” is highlighted to draw attention to the fact that in the meeting
of the Committee held in Geneva in the year 2007 certain general
observations with regard to MCAR of 18 years were made which would be
applicable to State parties other than India as the law had already been
amended in our country pursuant to the concluding observations made by the
Committee in the year 2000 specifically qua India. The views of the
Committee in respect of other member States may be usefully taken note at
this stage by extracting the recommendations in the nature of general
comments in paras 36, 37 and 38 of the Report:
“36. The Committee also wishes to draw the attention of States parties
to the upper age-limit for the application of the rules of juvenile
justice. These special rules - in terms both of special procedural
rules and of rules for diversion and special measures - should apply,
starting at the MACR set in the country, for all children who, at the
time of their alleged commission of an offence (or act punishable
under the criminal law), have not yet reached the age of 18 years.
“37. The Committee wishes to remind States parties that they have
recognized the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in
accordance with the provisions of article 40 of CRC. This means that
every person under the age of 18 years at the time of the alleged
commission of an offence must be treated in accordance with the rules
of juvenile justice.
“38. The Committee, therefore, recommends that those States parties
which limit the applicability of their juvenile justice rules to
children under the age of 16 (or lower) years, or which allow by way
of exception that 16 or 17-year-old children are treated as adult
criminals, change their laws with a view to achieving a non-
discriminatory full application of their juvenile justice rules to all
persons under the age of 18 years. The Committee notes with
appreciation that some States parties allow for the application of the
rules and regulations of juvenile justice to persons aged 18 and
older, usually till the age of 21, either as a general rule or by way
of exception.”
(emphasis added)
29. Both sides have laboured to assist the Court with elaborate and
detailed scientific and medical literature in support of their respective
stands. The scientific and medical opinion on the issue is not at variance
and it cannot be. The difference lies in the respective perceptions as we
will presently see. The works and opinions placed goes to show that
studies of adolescent brain anatomy clearly indicate that regions of the
brain that regulate such things as foresight, impulse control and
résistance to peer pressure are in a developing stage upto the age of 18.
These are normative phenomenon that a teenager cannot control and not a
pathological illness or defect. An article by Laurence Steinberg & Laura
H. Carnell titled “Should the Science of Adolescent Brain Development
inform Public Policy” is relied upon. On the basis of the above it is
contended that there is no answer to the question when an adolescent brain
becomes an adult brain because the structural and conventional changes do
not take place on a uniform time scale. It is further argued that
intellectual maturity of an adolescent is different from emotional or
social maturity which makes an adolescent mature for some decisions but not
for others, a position also highlighted by the Act which pre-supposes the
capacity of a child under 18 to consent for his adoption under Section
41(5) of the Act. On the said materials while the petitioners argue that
the lack of uniformity of mental growth upto the relevant age i.e. 18 years
would justify individualized decisions rather than treating adolescent as a
class the opposite view advanced is that between the lower and the upper
age, the age of 18 provides a good mid point of focus which may result in
some amount of over-classification but that would be inevitable in any
situation and a mid point reduces the chances of over-classification to the
minimum. These are the varying perceptions alluded to earlier.
30. It may be advantageous to now take note of the Juvenile Justice
System working in other jurisdictions.
A - CANADA
In Canada, the Youth Criminal Justice Act, 2002 provides for criminal
justice to young persons aged between 12 to 18 years. The Preamble
expressly states that the Act was enacted pursuant to Canada’s obligations
under the CRC. The Preamble also declares that “Canadian society should
have a youth criminal justice system that commands respect, takes into
account the interests of victims, fosters responsibility and ensures
accountability through meaningful consequences and effective rehabilitation
and reintegration, and that reserves its most serious intervention for the
most serious crimes and reduces the over-reliance on incarceration for non-
violent young persons.” (emphasis added)
While a ‘child’ is a person aged less than 12 years, a ‘young person’
is one aged between 12 and 18 years. Section 13 establishes “youth justice
courts” which have exclusive jurisdiction to try offences committed by a
young person. The Act makes special provisions where a young person commits
a “serious offence” (indictable offence punishable with more than 5 years’
imprisonment) and “serious violent offence” (first and second degree
murder, manslaughter, aggravated sexual assault, attempted murder). Custody
sentences are reserved for violent and serious crimes, but cannot exceed
the maximum punishment that can be awarded to adults for the same offence
(Section 38(2)(a)). One sentencing option is the “Intensive Rehabilitative
Custody and Supervision Order”, which is reserved for serious violent
offenders including for aggravated sexual assault. When the offender
attains 18 years, the Court may place him in an adult correctional centre
if this is in his best interest or in public interest.
Section 34 permits the Youth Justice Court to order for the mental and
psychological assessment of the young person for the following reasons
only:
a. Considering an application for release from or detention in
custody;
b. Deciding on an application for hearing the offender on adult
sentence;
c. Making or reviewing a youth sentence;
d. Considering an application relating to continuation of custody;
e. Making an order for conditional supervision;
f. Authorizing disclosure of information about a young person.
Further, assessment may be ordered only where (i) the offender has
committed a serious violent crime, or (ii) the Court suspects he is
suffering from a mental illness or disorder, or (iii) the offender has a
criminal history with repeated findings of guilt. Thus, an assessment under
Section 34 cannot be ordered for determining whether the offender lacks
sufficient “maturity” to be classified as a “juvenile/young person” (and
thus qualify for the benefits of the Act). This Act, like the JJ Act uses
the chronological test for determining its beneficiaries. However, in cases
of serious and serious violent crimes, the offender may be punished by the
Youth Justice Court with equivalent years of imprisonment as in the case of
an adult (Sections 38 & 39).
In its concluding remarks on Canada (dt. 05.10.2012), the Committee on
Rights of the Child expressed concern that the State had taken no steps to
raise the MACR and continued to try children under 18 as adults (in
relation to the circumstances or gravity of the offence). Besides
recommending the increase in MACR, the Committee also recommended that the
State i.e. Canada to ensure that no person under 18 is tried as an adult
irrespective of the circumstances or the gravity of the offence.[7]
B – UNITED KINGDOM
31. Children less than 10 years of age are irrefutably considered as
incapable of committing an offence. Children between 10-18 years are
capable of committing offences, but are usually tried in the Youth Court,
unless they have committed serious offences (such as rape or homicide) or
have been charged with adults (co-defendants), in which case they are tried
in the Crown Court. When jointly charged with adult co-defendants, though
the charges must be framed in the Magistrate’s court with the other
defendants, the juvenile should be sent to the Crown Court for trial if
there is a “real prospect” of him being sentenced to over 2 years’ custody
period.
The general policy of law in the UK is (i) juveniles under 18 years,
especially under 15 years, should be tried as far as possible by the Youth
Court, reserving trial in the Crown Court for serious cases, and (ii) first
time offenders aged 12-14 years and all offenders under 12 years should not
be detained in custody.
Sentencing: “Detention and Training Orders” may be given to an
offender aged 12-17 years, the first half of which is served in custody and
the second half is served in the community. These usually last between 4
months and 2 years.
“Extended” custodial sentences are given to young persons if their
crime is so serious that no other alternative is suitable, or if the young
person is a habitual offender, or if the Judge thinks the person is a risk
to public safety. Under S.91 of the Powers of Criminal Courts (Sentencing)
Act, 2000, a person below 18 years who is convicted of a serious offence,
may be sentenced to a period not exceeding the maximum term of imprisonment
for adults, including life. The place of detention is a young offender
institution. The Sentencing Guidelines provide that a sentence exceeding 2
years in respect of youth aged 12-17 years and accused of a grave offence
should be made only when such a sentence is a “realistic possibility”.
Instances of such offences include sexual assault. Where a person is
convicted of murder, he must be sentenced to detention at Her Majesty’s
pleasure.
C – UNITED STATES OF AMERICA
32. The US has a relatively high rate of juvenile delinquency. In 2011,
the number of juvenile delinquents was 129,456 out of a population of 250
million. Although the traditional age of majority is 18 years, nearly all
States permit persons less than 18 years to be tried as adults.
For example, in California, the majority age is 18 years, but persons
older than 14 years may be tried as adults if they commit serious crimes
(rape, robbery, murder etc.). The state of New York pegs the age of
juvenility at 16 years, and permits the prosecution of persons aged between
13-16 years as adults in case of serious crimes. In Florida, the
prosecutor has discretion to decide whether to try the juvenile as such or
as an adult, owing to concurrent jurisdiction of the juvenile and ordinary
criminal courts.
There are three legal mechanisms that permit the juvenile to be tried
as an adult in the States:
i. Judicial Waiver: The juvenile judge has the discretion to waive
jurisdiction and transfer the case to the adult criminal courts.
Presently, all states except Nebraska, New York, and New Mexico,
provide for judicial waiver. This discretion is entirely left to
the Judge in some States, whereas others provide some criteria
for its exercise. In Breed v. Jones (1975), the Court held that
adjudicating a juvenile first in a juvenile court, which
subsequently waived jurisdiction, followed by adjudication by an
adult court, violated the Fifth Amendment protection against
double jeopardy.;
ii. Prosecutorial Discretion : Where the prosecutor has the
discretion to decide whether to try the offender in a juvenile
or adult criminal court. This is most common in cases of repeat
offenders;
iii. Statutory exclusion: Where State legislation provides that the
youth be tried as an adult, based on factors such as the gravity
of the offence, prior criminal record, age of the youth etc.
iv. Blended Sentencing: A juvenile court may sentence a convicted
juvenile offender to both a juvenile sentence and an adult
sentence. The adult sentence is suspended on the condition that
the juvenile offender successfully completes the term of the
juvenile disposition and refrains from committing any new
offence. For example, juvenile courts in the State of Texas may
award up to 40 years’ sentence to offenders.
The trial procedure and sentencing principles applicable to adults are
equally applicable in case a person under 18 years is transferred to an
adult criminal court. Juveniles cannot, however, be sentenced to death
(Roper v. Simmons[8]) or imprisoned for life without possibility of parole
(Graham v. Florida[9]).
D - BRAZIL
33. The Statute of the Child and the Adolescent, 1990, enacted in
compliance with the CRC, treats persons below 18 years (but above 12 years)
as adolescents. ‘Councils of Guardianship’, municipal tribunals comprising
five locally elected members, deal with cases involving preadolescents
(younger children). Juvenile Courts deal with cases involving older
children. Confinement and incarceration are reserved for older youths up to
the age of 21 years.
E - BANGLADESH
34. The minimum age of criminal responsibility in Bangladesh is 9 years
(raised from 7 years in 2004). The Children Act, 1974 defines a child and
youthful offender as one below 16 years of age. The Act provides for the
establishment of Juvenile Courts with exclusive jurisdiction to try
youthful offenders (Section 13, Children Act). Ordinary criminal courts may
act as Juvenile Courts if the latter are not established. Procedure under
the Criminal Procedure Code, 1898 is followed. Section 51 prohibits the
award of death sentence, imprisonment and transportation to a youthful
offender. The proviso to this section provides for situations (serious
crimes or where the juvenile is so unruly or depraved) permitting the Court
to sentence him to imprisonment. However, the period of imprisonment cannot
exceed the period of maximum punishment for adults. It appears that life
imprisonment may be awarded in these exceptional cases to juveniles.
F - AFGHANISTAN
35. The Juvenile Code sets the minimum age of criminal responsibility at
12 years. A child is defined as a person below 18 years of age. Trial of
children in conflict with the law is conducted by dedicated Juvenile
Courts. Juvenile offenders are prosecuted by special ‘Juvenile
Prosecutors’.
Sentences of death and life imprisonment cannot be awarded to
juveniles. For juveniles aged between 12-16 years, 1/3rd of the maximum
punishment to adults can be awarded. For juveniles aged between 16-18
years, ½ of the maximum punishment to adults can be awarded.
G - BHUTAN
36. The minimum age of criminal responsibility is 10 years. Although not
expressly defined, a juvenile is understood as a person below 18 years of
age. Bhutan does not possess a special legislation dealing with juvenile
offenders; there are no specialized Juvenile courts either. Section 213 of
the Civil and Criminal Procedure Code has certain provisions regulating the
trial of a juvenile offender. Persons below 18 years can be awarded half of
the adult sentence.
H - NEPAL
37. The minimum age of criminal responsibility is 10 years. A child is a
person below 16 years. Youth between 16-18 years are charged and tried as
adults.
38. The next significant aspect of the case that would require to be
highlighted is the differences in the juvenile justice system and the
criminal justice system working in India. This would have relevance to the
arguments made in W.P. No.204 of 2013. It may be convenient to notice the
differences by means of the narration set out hereinunder:
Pre-trial Processes
Filing of FIR:
Criminal Justice System: The system swings into action upon receipt of
information (oral or written) by the officer in charge of a police station
with regard to the commission of a cognizable offence.
JJ System: Rule 11(11) of the JJ Rules, 2007 states that the Police
are not required to file an FIR or a charge-sheet while dealing with cases
of juveniles in conflict with the law. Instead, they must only record the
information of the offence in the general daily diary, followed by a report
containing the social background of the juvenile, circumstances of the
apprehension and the alleged offence.
An FIR is necessary only if the juvenile has (i) allegedly committed a
serious offence like rape or murder, or (ii) has allegedly committed the
offence with an adult.
Investigation and Inquiry:
Criminal Justice System: Ss. 156 and 157, CrPC deals with the power
and procedure of police to investigate cognizable offences. The police may
examine witnesses and record their statements. On completion of the
investigation, the police officer is required to submit a Final Report to
the Magistrate u/s 173(2).
JJ System: The system contemplates the immediate production of the
apprehended juvenile before the JJ Board, with little scope for police
investigation. Before the first hearing, the police is only required to
submit a report of the juvenile’s social background, the circumstances of
apprehension and the alleged offence to the Board (Rule 11(11)). In cases
of a non-serious nature, or where apprehension of the juvenile is not in
the interests of the child, the police are required to intimate his
parents/guardian that the details of his alleged offence and his social
background have been submitted to the Board (Rule 11(9)).
Arrest
Criminal Justice System: Arrest of accused persons is regulated under
Chapter V of the CrPC. The police are empowered to arrest a person who has
been accused of a cognizable offence if the crime was committed in an
officer’s presence or the police officer possesses a reasonable suspicion
that the crime was committed by the accused. Further, arrest may be
necessary to prevent such person from committing a further crime; from
causing disappearance or tampering with evidence and for proper
investigation (S.41). Persons accused of a non-cognizable offence may be
arrested only with a warrant from a Magistrate (S.41(2)).
JJ System: The JJ Rules provide that a juvenile in conflict with the
law need not be apprehended except in serious offences entailing adult
punishment of over 7 years (Rule 11(7)). As soon as a juvenile in conflict
with the law is apprehended, the police must inform the designated
Child/Juvenile Welfare Officer, the parents/guardian of the juvenile, and
the concerned Probation Officer (for the purpose of the social background
report) (S.13 & R.11(1)). The juvenile so apprehended is placed in the
charge of the Welfare Officer. It is the Welfare Officer’s duty to produce
the juvenile before the Board within 24 hours (S. 10 & Rule 11(2)). In no
case can the police send the juvenile to lock up or jail, or delay the
transfer of his charge to the Welfare Officer (proviso to S.10 & R.11(3)).
Bail
Criminal Justice System: Chapter XXXIII of the CrPC provides for bails
and bonds. Bail may be granted in cases of bailable and non-bailable
offences in accordance with Ss. 436 and 437 of the CrPC. Bail in non-
bailable offences may be refused if there are reasonable grounds for
believing that the person is guilty of an offence punishable with death or
imprisonment for life, or if he has a criminal history (S.437(1)).
JJ System: A juvenile who is accused of a bailable or non-bailable
offence “shall” be released on bail or placed under the care of a suitable
person/institution. This is subject to three exceptions: (i) where his
release would bring him into association with a known criminal, (ii) where
his release would expose him to moral, physical or psychological danger, or
(iii) where his release would defeat the ends of justice. Even where bail
is refused, the juvenile is to be kept in an observation home or a place of
safety (and not jail).
Trial and Adjudication
The trial of an accused under the criminal justice system is governed
by a well laid down procedure the essence of which is clarity of the charge
brought against the accused; the duty of the prosecution to prove the
charge by reliable and legal evidence and the presumption of innocence of
the accused. Culpability is to be determined on the touchstone of proof
beyond reasonable doubt but if convicted, punishment as provided for is
required to be inflicted with little or no exception. The accused is
entitled to seek an exoneration from the charge(s) levelled i.e. discharge
(amounting to an acquittal) mid course.
JJ System: Under S.14, whenever a juvenile charged with an offence is
brought before the JJ Board, the latter must conduct an ‘inquiry’ under the
JJ Act. A juvenile cannot be tried with an adult (S.18).
Determination of the age of the juvenile is required to be made on the
basis of documentary evidence (such as birth certificate, matriculation
certificate, or Medical Board examination).
The Board is expected to conclude the inquiry as soon as possible
under R.13. Further, the Board is required to satisfy itself that the
juvenile has not been tortured by the police or any other person and to
take steps if ill-treatment has occurred. Proceedings must be conducted in
the simplest manner and a child-friendly atmosphere must be maintained
(R.13(2)(b)), and the juvenile must be given a right to be heard (clause
(c)). The inquiry is not to be conducted in the spirit of adversarial
proceedings, a fact that the Board is expected to keep in mind even in the
examination of witnesses (R.13(3)). R.13(4) provides that the Board must
try to put the juvenile at ease while examining him and recording his
statement; the Board must encourage him to speak without fear not only of
the circumstances of the alleged offence but also his home and social
surroundings. Since the ultimate object of the Act is the rehabilitation of
the juvenile, the Board is not merely concerned with the allegations of the
crime but also the underlying social causes for the same in order to
effectively deal with such causes.
The Board may dispense with the attendance of the juvenile during the
inquiry, if thought fit (S. 47). Before the Board concludes on the
juvenile’s involvement, it must consider the social investigation report
prepared by the Welfare Officer (R.15(2)).
The inquiry must not prolong beyond four months unless the Board
extends the period for special reasons due to the circumstances of the
case. In all non-serious crimes, delay of more than 6 months will terminate
the trial (R.13(7)).
Sentencing: The Board is empowered to pass one of the seven
dispositional orders u/s 15 of the JJ Act: advice/admonition, group
counseling, community service, payment of fine, release on probation of
good conduct and placing the juvenile under the care of parent or guardian
or a suitable institution, or sent to a Special home for 3 years or less.
Where a juvenile commits a serious offence, the Board must report the
matter to the State Govt. who may keep the juvenile in a place of Safety
for not more than 3 years. A juvenile cannot be sentenced to death or life
imprisonment.
Post-trial Processes
JJ System: No disqualification attaches to a juvenile who is found to
have committed an offence. The records of his case are removed after the
expiry of period of appeal or a reasonable period.
S. 40 of the JJ Act provides that the rehabilitation and social
reintegration of the juvenile begins during his stay in a children’s home
or special home. “After-care organizations” recognized by the State Govt.
conduct programmes for taking care of juveniles who have left special homes
to enable them to lead honest, industrious and useful lives.
Differences between JJ System and Criminal Justice System
1. FIR and charge-sheet in respect of juvenile offenders is filed
only in ‘serious cases’, where adult punishment exceeds 7 years.
2. A juvenile in conflict with the law is not “arrested”, but
“apprehended”, and only in case of allegations of a serious crime.
3. Once apprehended, the police must immediately place such juvenile
under the care of a Welfare Officer, whose duty is to produce the
juvenile before the Board. Thus, the police do not retain pre-
trial custody over the juvenile.
4. Under no circumstances is the juvenile to be detained in a jail or
police lock-up, whether before, during or after the Board inquiry.
5. Grant of Bail to juveniles in conflict with the law is the Rule.
6. The JJ board conducts a child-friendly “inquiry” and not an
adversarial trial. This is not to say that the nature of the
inquiry is non-adversarial, since both prosecution and defence
submit their cases. Instead, the nature of the proceedings
acquires a child-friendly colour.
7. The emphasis of criminal trials is to record a finding on the
guilt or innocence of the accused. In case of established guilt,
the prime object of sentencing is to punish a guilty offender. The
emphasis of juvenile ‘inquiry’ is to find the guilt/innocence of
the juvenile and to investigate the underlying social or familial
causes of the alleged crime. Thus, the aim of juvenile sentencing
is to reform and rehabilitate the errant juvenile.
8. The adult criminal system does not regulate the activities of the
offender once s/he has served the sentence. Since the JJ system
seeks to reform and rehabilitate the juvenile, it establishes post-
trial avenues for the juvenile to make an honest living.
39. Having laid bare all that is necessary for a purposive adjudication
of the issues that have been raised by the rival camps we may now proceed
to examine the same.
The Act, as manifestly clear from the Statement of Objects and
Reasons, has been enacted to give full and complete effect to the country’s
international obligations arising from India being a signatory to the three
separate conventions delineated hereinbefore, namely, the Beijing Rules,
the UN Convention and the Havana Rules. Notwithstanding the avowed object
of the Act and other such enactments to further the country’s international
commitments, all of such laws must necessarily have to conform to the
requirements of a valid legislation judged in the context of the relevant
constitutional provisions and the judicial verdicts rendered from time to
time. Also, that the Act is a beneficial piece of legislation and must
therefore receive its due interpretation as a legislation belonging to the
said category has been laid down by a Constitution Bench of this Court in
Pratap Singh vs. State of Jharkhand and Another[10]. In other words, the
Act must be interpreted and understood to advance the cause of the
legislation and to confer the benefits of the provisions thereof to the
category of persons for whom the legislation has been made.
40. Dr. Swamy at the outset has urged that there is no attempt on his
part to challenge the constitutional validity of the Act, particularly, the
provisions contained in Sections 2(k) and 2(l) of the Act and what he seeks
is a mere reading down of the Act. It is not very difficult to understand
the reason for the argument; Dr. Swamy seeks to overcome what he perceives
to be a bar to a direct challenge on account of the decision of this Court
in Salil Bali (supra). But if the argument advanced if is to be carried to
the fullest extent the implication is obvious. If the Act is not to be
read down, as urged, it will stand invalidated on grounds of
unconstitutionality. The argument, therefore, is really the other side of
the same coin which has been cast by Dr. Hingorani who is more forthright
in his challenge to the validity of the Act on the twin grounds already
noticed, namely, that the Act would result in over-classification if all
juveniles, irrespective of the level of mental maturity, are to be grouped
in one class and on the further ground that the Act replaces the criminal
justice system in the country and therefore derogates a basic feature of
the Constitution. If the arguments are to be understood and examined from
the aforesaid perspective, the conclusion is obvious – what the Court is
required to consider, apart from the incidental and side issues which would
not be of much significance, is whether the Act would survive the test of
constitutionality if the same is not to be read and understood in the
manner urged. Of course, if the constitutionality of the Act is to become
suspect, the further question, as we have already indicated, is what should
be the course of action that would be open to this Coordinate Bench in view
of the decision in Salil Bali (supra).
41. Dr. Swamy would urge that the relevant provisions of the Act i.e.
Sections 1(4), 2(k), 2(l) and 7 must be read to mean that juveniles
(children below the age of 18) who are intellectually, emotionally and
mentally mature enough to understand the implications of their acts and who
have committed serious crimes do not come under the purview of the Act.
Such juveniles are liable to be dealt with under the penal law of the
country and by the regular hierarchy of courts under the criminal justice
system administered in India. This is what was intended by the
legislature; a plain reading, though, shows an unintended omission which
must be made up or furnished by the Court. It is further urged that if the
Act is not read in the above manner the fall out would render the same in
breach of Article 14 as inasmuch as in that event there would be a
blanket/flat categorisation of all juveniles, regardless of their mental
and intellectual maturity, committing any offence, regardless of its
seriousness, in one homogenous block in spite of their striking
dissimilarities. This, Dr. Swamy contends, is a classification beyond what
would be permissible under Article 14 in as much as the result of such
classification does not further the targeted object i.e. to confer the
benefits of the Act to persons below 18 who are not criminally responsible
in view of the low level of mental maturity reached or achieved. This, in
substance, is also the argument of Dr. Hingorani, who, in addition, has
contended that the Act replaces the criminal justice system of the country
by a scheme which is not even a poor substitute. The substituted scheme
does not even remotely fit with constitutional tapestry woven by certain
basic features namely the existence of a criminal justice system.
42. Reading down the provisions of a statute cannot be resorted to when
the meaning thereof is plain and unambiguous and the legislative intent is
clear. The fundamental principle of the “reading down” doctrine can be
summarized as follows. Courts must read the legislation literally in the
first instance. If on such reading and understanding the vice of
unconstitutionality is attracted, the courts must explore whether there has
been an unintended legislative omission. If such an intendment can be
reasonably implied without undertaking what, unmistakably, would be a
legislative exercise, the Act may be read down to save it from
unconstitutionality. The above is a fairly well established and well
accepted principle of interpretation which having been reiterated by this
Court time and again would obviate the necessity of any recall of the huge
number of precedents available except, perhaps, the view of Sawant, J.
(majority view) in Delhi Transport Corporation vs. D.T.C. Mazdoor Congress
and Others[11] which succinctly sums up the position is, therefore,
extracted below.
“255. It is thus clear that the doctrine of reading down or of
recasting the statute can be applied in limited situations. It is
essentially used, firstly, for saving a statute from being struck
down on account of its unconstitutionality. It is an extension of
the principle that when two interpretations are possible — one
rendering it constitutional and the other making it
unconstitutional, the former should be preferred. The
unconstitutionality may spring from either the incompetence of the
legislature to enact the statute or from its violation of any of
the provisions of the Constitution. The second situation which
summons its aid is where the provisions of the statute are vague
and ambiguous and it is possible to gather the intentions of the
legislature from the object of the statute, the context in which
the provision occurs and the purpose for which it is made. However,
when the provision is cast in a definite and unambiguous language
and its intention is clear, it is not permissible either to mend or
bend it even if such recasting is in accord with good reason and
conscience. In such circumstances, it is not possible for the court
to remake the statute. Its only duty is to strike it down and leave
it to the legislature if it so desires, to amend it. What is
further, if the remaking of the statute by the courts is to lead to
its distortion that course is to be scrupulously avoided. One of
the situations further where the doctrine can never be called into
play is where the statute requires extensive additions and
deletions. Not only it is no part of the court’s duty to undertake
such exercise, but it is beyond its jurisdiction to do so.”
43. In the present case there is no difficulty in understanding the clear
and unambiguous meaning of the different provisions of the Act. There is
no ambiguity, muchless any uncertainty, in the language used to convey what
the legislature had intended. All persons below the age of 18 are put in
one class/group by the Act to provide a separate scheme of investigation,
trial and punishment for offences committed by them. A class of persons is
sought to be created who are treated differently. This is being done to
further/effectuate the views of the international community which India
has shared by being a signatory to the several conventions and treaties
already referred to.
44. Classification or categorization need not be the outcome of a
mathematical or arithmetical precision in the similarities of the persons
included in a class and there may be differences amongst the members
included within a particular class. So long as the broad features of the
categorization are identifiable and distinguishable and the categorization
made is reasonably connected with the object targeted, Article 14 will not
forbid such a course of action. If the inclusion of all under 18 into a
class called ‘juveniles’ is understood in the above manner, differences
inter se and within the under 18 category may exist. Article 14 will,
however, tolerate the said position. Precision and arithmetical accuracy
will not exist in any categorization. But such precision and accuracy is
not what Article 14 contemplates. The above principles have been laid down
by this Court in a plethora of judgments and an illustrative reference to
some may be made by recalling the decisions in Murthy Match Works and
Others vs. The Asstt. Collector of Central Excise and Another[12], Roop
Chand Adlakha and Others vs. Delhi Development Authority and Others[13],
Kartar Singh vs. State of Punjab[14], Basheer alias N.P. Basheer vs.State
of Kerala[15], B. Manmad Reddy and Others vs. Chandra Prakash Reddy and
Others[16], Transport and Dock Workers Union and Others vs. Mumbai Port
Trust and Another[17] .
45. If the provisions of the Act clearly indicate the legislative intent
in the light of the country’s international commitments and the same is in
conformity with the constitutional requirements, it is not necessary for
the Court to understand the legislation in any other manner. In fact, if
the Act is plainly read and understood, which we must do, the resultant
effect thereof is wholly consistent with Article 14. The Act, therefore,
need not be read down, as suggested, to save it from the vice of
unconstitutionality for such unconstitutionality does not exist.
46. That in certain foreign jurisdictions, details of which have been
mentioned earlier to bring about clarity and completeness to the issues
arising, the position is otherwise would hardly be of any consequence so
far as our country is concerned. Contrary international opinion, thinking
or practice, even if assumed, does not dictate the legislation of a
sovereign nation. If the legislature has adopted the age of 18 as the
dividing line between juveniles and adults and such a decision is
constitutionally permissible the enquiry by the Courts must come to an end.
Even otherwise there is a considerable body of world opinion that all
under 18 persons ought to be treated as juveniles and separate treatment
ought to be meted out to them so far as offences committed by such persons
are concerned. The avowed object is to ensure their rehabilitation in
society and to enable the young offenders to become useful members of the
society in later years. India has accepted the above position and
legislative wisdom has led to the enactment of the JJ Act in its present
form. If the Act has treated all under 18 as a separate category for the
purposes of differential treatment so far as the commission of offences
are concerned, we do not see how the contentions advanced by the
petitioners to the contrary on the strength of the thinking and practices
in other jurisdictions can have any relevance.
47. In the earlier paragraphs of this report we have analyzed in detail
the difference between the criminal justice system and the system for
dealing with offenders under the JJ Act. The Act does not do away or
obliterate the enforcement of the law insofar as juvenile offenders are
concerned. The same penal law i.e. Indian Penal Code apply to all
juveniles. The only difference is that a different scheme for trial and
punishment is introduced by the Act in place of the regular provisions
under the Code of Criminal Procedure for trial of offenders and the
punishments under the Indian Penal Code. The above situation is vastly
different from what was before the Court in Mithu (supra) and also in Dadu
(supra). In Mithu (supra) a separate treatment of the accused found guilty
of a second incident of murder during the currency of the sentence for an
earlier offence of murder was held to be impermissible under Article 14.
Besides the absence of any judicial discretion, whatsoever, in the matter
of imposition of sentence for a second Act of murder was held to be “out of
tune” with the constitutional philosophy of a fair, just and reasonable
law. On the other hand in Dadu (supra), Section 32A of the NDPS Act which
had ousted the jurisdiction of the Court to suspend a sentence awarded
under the Act was read down to mean that the power of suspension,
notwithstanding Section 32A of the NDPS Act, can still be exercised by the
appellate court but subject to the conditions stipulated in Section 37
namely (i) there are reasonable grounds for believing that the accused is
not guilty of such offence; and (ii) that he is not likely to commit any
offence while on bail are satisfied. Nothing as sweeping and as drastic in
Mithu (supra) and Dadu (supra) has been introduced by the provisions of the
Act so as to enable us to share the view expressed by Dr. Hingorani that
the Act sets at naught all the essential features of the criminal justice
system and introduces a scheme which is abhorrent to our constitutional
values. Having taken the above view, we do not consider it necessary to
enter in the consequential arena, namely, the applicability of the
provisions of Article 20(3) of the Constitution and Section 300 of the Code
of Criminal Procedure to the facts of the present case as on the view that
we have taken no question of sending the juvenile – Raju to face a regular
trial can and does arise.
48. Before parting, we would like to observe that elaborate statistics
have been laid before us to show the extent of serious crimes committed by
juveniles and the increase in the rate of such crimes, of late. We refuse
to be tempted to enter into the said arena which is primarily for the
legislature to consider. Courts must take care not to express opinions on
the sufficiency or adequacy of such figures and should confine its scrutiny
to the legality and not the necessity of the law to be made or continued.
We would be justified to recall the observations of Justice Krishna Iyer in
Murthy March Works (supra) as the present issues seem to be adequately
taken care of by the same:
“13. Right at the threshold we must warn ourselves of the limitations
of judicial power in this jurisdiction. Mr Justice Stone of the
Supreme Court of the United States has delineated these limitations in
United States v. Butler (1936) 297 US 1 thus:
“The power of Courts to declare a statute unconstitutional is
subject to two guiding principles of decision which ought never
to be absent from judicial consciousness. One is that Courts are
concerned only with the power to enact statutes, not with their
wisdom. The other is that while unconstitutional exercise of
power by the executive and legislative branches of the
government is subject to judicial restraint, the only check upon
our exercise of power is our own sense of self-restraint For the
removal of unwise laws from the statute books appeal lies not to
the Courts but to the ballot and to the processes of democratic
Government.”
14. In short, unconstitutionality and not unwisdom of a legislation is
the narrow area of judicial review. In the present case
unconstitutionality is alleged as springing from lugging together two
dissimilar categories of match manufacturers into one compartment for
like treatment.
15. Certain principles which bear upon classification may be mentioned
here. It is true that a State may classify persons and objects for the
purpose of legislation and pass laws for the purpose of obtaining
revenue or other objects. Every differentiation is not a
discrimination. But classification can be sustained only if it is
founded on pertinent and real differences as distinguished from
irrelevant and artificial ones. The constitutional standard by which
the sufficiency of the differentia which form a valid basis for
classification may be measured, has been repeatedly stated by the
Courts. If it rests on a difference which bears a fair and just
relation to the object for which it is proposed, it is constitutional.
To put it differently, the means must have nexus with the ends. Even
so, a large latitude is allowed to the State for classification upon a
reasonable basis and what is reasonable is a question of practical
details and a variety of factors which the Court will be reluctant and
perhaps ill-equipped to investigate. In this imperfect world
perfection even in grouping is an ambition hardly ever accomplished.
In this context, we have to remember the relationship between the
legislative and judicial departments of Government in the
determination of the validity of classification. Of course, in the
last analysis Courts possess the power to pronounce on the
constitutionality of the acts of the other branches whether a
classification is based upon substantial differences or is arbitrary,
fanciful and consequently illegal. At the same time, the question of
classification is primarily for legislative judgment and ordinarily
does not become a judicial question. A power to classify being
extremely broad and based on diverse considerations of executive
pragmatism, the Judicature cannot rush in where even the Legislature
warily treads. All these operational restraints on judicial power must
weigh more emphatically where the subject is taxation.”
(Emphasis is ours)
49. On the above note we deem it appropriate to part with the cases by
dismissing the appeal filed by Dr. Subramanian Swamy and Others as well as
the writ petition filed by the parents of the unfortunate victim of the
crime.
...…………………………CJI.
[P. SATHASIVAM]
.........………………………J.
[RANJAN GOGOI]
…..........……………………J.
[SHIVA KIRTI SINGH]
NEW DELHI,
MARCH 28, 2014.
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[1] (2013) 3 SCALE 1
[2] (1983) 2 SCC 277
[3] (2000) 8 SCC 437
[4] (2013) 4 SCC 705
[5] (1989) 3 SCC 151
[6] (2012) 10 SCC 1
[7] Committee on the Rights of the Child, 61st Session, 05 October 2012,
CRC/C/CAN/CO/3-4, paras 85-86, p.20.
[8] 543 US 551 (2005)
[9] 560 US 48 (2010)
[10] (2005) 3 SCC 551
[11] 1991 Supp. (1) SCC 600
[12] (1974) 4 SCC 428
[13] 1989 Supp (1) SCC 116
[14] (1994) 3 SCC 569
[15] (2004) 3 SCC 609
[16] (2010) 3 SCC 314
[17] (2011) 2 SCC 575
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