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