SUPREME COURT OF INDIA
[Dr. Subramanian Swamy v. Raju, Criminal Appeal No. 695 of 2014, decided on March 28, 2014]
Citation: 2014(2)ACR1615(SC), 2014iv AD (S.C.) 193, AIR2014SC1649, 2014(3)AJR469, 2014 (86) ALLCC 637, 2014(2)BomCR(Cri)340, II(2014)CCR159(SC), 2014(3)J.L.J.R.7, JT2014(4)SC328, (2014) 2 MLJ(Crl) 137 (SC), 2014(1)N.C.C.497, 2014(3)PLJR177, 2014(2)RCR(Criminal)361, 2014(4)SCALE305, 2014 (6) SCJ 124
REPORTABLE
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
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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
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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 respondentjuvenile
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
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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
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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
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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
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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 Maharashtra1
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
1 (2013) 3 SCALE 1
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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 Punjab2 and Dadu Vs. State of Maharashtra3. 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
2 (1983) 2 SCC 277
3 (2000) 8 SCC 437
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 India4 will not
be an inhibition for the Court to answer the question(s)
4 (2013) 4 SCC 705
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
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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
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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 Others5 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
5 (1989) 3 SCC 151
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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 20126 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
6 (2012) 10 SCC 1
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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.
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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.
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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
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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
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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)).
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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.
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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 nondiscrimination
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
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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
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(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.”
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(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
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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 overclassification
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.
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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
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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;
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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
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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
7 Committee on the Rights of the Child, 61st Session, 05 October 2012,
CRC/C/CAN/CO/3-4, paras 85-86, p.20.
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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
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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
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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
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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.
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Simmons8) or imprisoned for life without possibility of
parole (Graham v. Florida9).
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
8 543 US 551 (2005)
9 560 US 48 (2010)
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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
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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
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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:
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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
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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)).
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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 nonbailable
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
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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).
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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
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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
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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
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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 nonadversarial,
since both prosecution and
defence submit their cases. Instead, the nature
of the proceedings acquires a child-friendly
colour.
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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.
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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 Another10. 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
10 (2005) 3 SCC 551
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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
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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
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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
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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 Others11
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
11 1991 Supp. (1) SCC 600
5
Page 59
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
5
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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.
6
Page 61
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 Another12, Roop Chand
Adlakha and Others vs. Delhi Development Authority
and Others13, Kartar Singh vs. State of Punjab14,
Basheer alias N.P. Basheer vs.State of Kerala15, B.
Manmad Reddy and Others vs. Chandra Prakash
Reddy and Others16, Transport and Dock Workers
Union and Others vs. Mumbai Port Trust and Another17
.
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
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
6
Page 62
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
6
Page 63
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
6
Page 64
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.
6
Page 65
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
6
Page 66
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.
6
Page 67
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)
6
Page 68
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.
6
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
1
Page 2
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
2
Page 3
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 :-
3
Page 4
“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
4
Page 5
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
5
Page 6
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
6
Page 7
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 respondentjuvenile
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
7
Page 8
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
8
Page 9
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
9
Page 10
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
1
Page 11
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 Maharashtra1
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
1 (2013) 3 SCALE 1
1
Page 12
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
1
Page 13
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 Punjab2 and Dadu Vs. State of Maharashtra3. 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
2 (1983) 2 SCC 277
3 (2000) 8 SCC 437
1
Page 14
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 India4 will not
be an inhibition for the Court to answer the question(s)
4 (2013) 4 SCC 705
1
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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
1
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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
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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
1
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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
1
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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 Others5 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
5 (1989) 3 SCC 151
1
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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 20126 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
6 (2012) 10 SCC 1
2
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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.
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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.
2
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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
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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
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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)).
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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
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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.
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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 nondiscrimination
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
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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
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(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.”
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(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
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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 overclassification
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.
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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
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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;
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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
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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
7 Committee on the Rights of the Child, 61st Session, 05 October 2012,
CRC/C/CAN/CO/3-4, paras 85-86, p.20.
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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
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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
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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
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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.
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Simmons8) or imprisoned for life without possibility of
parole (Graham v. Florida9).
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
8 543 US 551 (2005)
9 560 US 48 (2010)
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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
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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
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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:
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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
4
Page 46
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)).
4
Page 47
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 nonbailable
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
4
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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).
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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
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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
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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
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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 nonadversarial,
since both prosecution and
defence submit their cases. Instead, the nature
of the proceedings acquires a child-friendly
colour.
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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.
5
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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 Another10. 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
10 (2005) 3 SCC 551
5
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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
5
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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
5
Page 57
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
5
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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 Others11
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
11 1991 Supp. (1) SCC 600
5
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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
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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.
6
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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 Another12, Roop Chand
Adlakha and Others vs. Delhi Development Authority
and Others13, Kartar Singh vs. State of Punjab14,
Basheer alias N.P. Basheer vs.State of Kerala15, B.
Manmad Reddy and Others vs. Chandra Prakash
Reddy and Others16, Transport and Dock Workers
Union and Others vs. Mumbai Port Trust and Another17
.
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
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
6
Page 62
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
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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
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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.
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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
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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.
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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.
6Page 1
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
2
Page 3
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 :-
3
Page 4
“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
4
Page 5
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
5
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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
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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 respondentjuvenile
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
7
Page 8
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
8
Page 9
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
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Page 10
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
1
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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 Maharashtra1
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
1 (2013) 3 SCALE 1
1
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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
1
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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 Punjab2 and Dadu Vs. State of Maharashtra3. 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
2 (1983) 2 SCC 277
3 (2000) 8 SCC 437
1
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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 India4 will not
be an inhibition for the Court to answer the question(s)
4 (2013) 4 SCC 705
1
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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
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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
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Page 17
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
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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
1
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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 Others5 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
5 (1989) 3 SCC 151
1
Page 20
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 20126 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
6 (2012) 10 SCC 1
2
Page 21
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.
2
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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.
2
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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
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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
2
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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)).
2
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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
2
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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.
2
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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 nondiscrimination
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
2
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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
2
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(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.”
3
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(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
3
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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 overclassification
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.
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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
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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;
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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
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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
7 Committee on the Rights of the Child, 61st Session, 05 October 2012,
CRC/C/CAN/CO/3-4, paras 85-86, p.20.
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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
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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
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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
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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.
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Simmons8) or imprisoned for life without possibility of
parole (Graham v. Florida9).
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
8 543 US 551 (2005)
9 560 US 48 (2010)
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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
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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
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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:
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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
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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)).
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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 nonbailable
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
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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).
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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
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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
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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
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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 nonadversarial,
since both prosecution and
defence submit their cases. Instead, the nature
of the proceedings acquires a child-friendly
colour.
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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.
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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 Another10. 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
10 (2005) 3 SCC 551
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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
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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
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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
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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 Others11
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
11 1991 Supp. (1) SCC 600
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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
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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.
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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 Another12, Roop Chand
Adlakha and Others vs. Delhi Development Authority
and Others13, Kartar Singh vs. State of Punjab14,
Basheer alias N.P. Basheer vs.State of Kerala15, B.
Manmad Reddy and Others vs. Chandra Prakash
Reddy and Others16, Transport and Dock Workers
Union and Others vs. Mumbai Port Trust and Another17
.
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
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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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
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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
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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.
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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
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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.
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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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