TMI Blog2014 (3) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... ve taken no question of sending the juvenile – Raju to face a regular trial can and does arise. - CRIMINAL APPEAL NO. 695 OF 2014 (Arising Out of SLP (Crl.) No.1953 of 2013) With W.P. (Crl.) No.204 of 2013 - - - Dated:- 28-3-2014 - SATHASIVAM, P (CJI), GOGOI, RANJAN, SINGH,SHIVA KIRTI, JJ. DR. SUBRAMANIAN SWAMY ORS. VERSUS RAJU THR. MEMBER JUVENILE JUSTICE BOARD ANR. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 irr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgued 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[(1983) 2 SCC 277] and Dadu Vs. State of Maharashtra[(2000) 8 SCC 437]. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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[(1989) 3 SCC 151] 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r sistance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 equiva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenge 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssity 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[1991 Supp. (1) SCC 600] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by recalling the decisions in Murthy Match Works and Others vs. The Asstt. Collector of Central Excise and Another[(1974) 4 SCC 428], Roop Chand Adlakha and Others vs. Delhi Development Authority and Others[1989 Supp (1) SCC 116], Kartar Singh vs. State of Punjab[(1994) 3 SCC 569], Basheer alias N.P. Basheer vs.State of Kerala[(2004) 3 SCC 609], B. Manmad Reddy and Others vs. Chandra Prakash Reddy and Others[(2010) 3 SCC 314], Transport and Dock Workers Union and Others vs. Mumbai Port Trust and Another[(2011) 2 SCC 575] . 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 bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 classif ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
