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Millennium Post

Must we or must we not?

The recent shocking Mumbai gang-rape incident has once again thrown-up the issue of the accused claiming to be juveniles and wanting protection of the Juvenile Justice (Care and Protection of Children) Act (JJA). In fact, it’s quite ironic that this issue of juveniles is drawing attention just a few weeks after a three judge bench of the Supreme Court of India, headed by the then chief justice, upheld the constitutional validity of 18 years as the age of juveniles and refused to lower it. But in the last few weeks, another bench of equal strength headed by the present chief justice has decided to hear another Public Interest Litigation (PIL), which seeks to urge that culpability of juveniles should be determined on mental and physical maturity rather than actual age. The learned Additional Solicitor General (ASG) is reported to have informed the present bench that similar issues have recently been adjudicated. But the Supreme Court observed the gravity of the matter and was inclined to take a fresh look at the issue of children in conflict with law.

As a legal practitioner, one argues that the doctrine of stare decisis – that rules or principles of law on which a court rested a previous decision are authoritative inall future cases in which the facts are substantially the same – is a fundamental tenet of our legal jurisprudence. But since the matter is sub-judice it would be improper for anyone to questions the court’s motive to hear the petition or speculate on its outcome. Instead, energies should be focused on highlighting before the present court, issues that were probably not urged in the previous batch of cases and seek a final resolution of these issues. One also hopes that in keeping with established practice, the matter gets referred to a constitutional bench, so that the law with regards to juveniles becomes clearly understood.
In fact, in a society, where law is subject to a continuous evolutionary process and in a country where the rule of law is above all else, this ‘second-coming’ should not be seen with doubtful eyes. Instead it should be welcomed as an opportunity to further the overall objectives of the JJA and seek its effective implementation and better administration nationwide.

To recall, one of the prime accused in the Delhi gang-rape of December is below 18 years. A similar defence is reportedly being taken by a few accused in the recent Mumbai gang-rape. As the law currently stands, all those below 18 will be treated as juveniles and can only be tried under the JJA and the maximum punishment that can be awarded to them is 3 years. These facts, add to the overall public outrage over these incidents and previously led to a flurry of PIL’s being filed across the country. They were all finally decided by the Apex Court in its decision titled Salil Bali vs Union of India where the Court noted the reasons why 18 years was adopted as the age of juveniles and upheld its constitutional validity.

While one respects the above decision, the Court seems to have overlooked the issue of carving out an exception to the general age of 18 years in cases of heinous crimes involving juveniles, as was urged by many petitioners. In the recent Mumbai gang-rape case it is also reported that the accused were previous charge-sheeters and therefore were individuals who perhaps well understood the consequences of their actions. In fact, the court while deciding the last set of PIL’s noted the exceptions made in some other western democracies, but chose not to adopt a similar metric in India. Further, the court noted that the real problem lies in the lack of implementation of the JJA, yet didn’t cease the opportunity to seek detailed reports from each states about their respective administrative efforts in relation to the JJA, as is quite common in PIL’s.

It’s worth highlighting that, even prior to the PIL’s filed in the aftermath of the December gang-rape, the Supreme Court had analysed the objectives of the JJA and noted that it is incumbent upon the state to ensure that our children are protected against exploitation and against moral and material abandonment, and, hence, any reaction to juvenile offenders or children in conflict with law, as they are termed under the JJA, should always be in proportion to the circumstances of both the offenders and the offence.

The Supreme Court examined the above-highlighted delicate balance when the present chief justice, prior to his current elevation, pronounced judgment in the Bombay bomb blast cases, as part of a two judge bench, which also involved a juvenile. In that case, the court presided over by the current chief justice noted that, the JJA would not have an overriding effect over the Terrorist And Disruptive Activities Prevention Act. The court, thus, made a specific noting that ‘the appellant (Mohd. Moin Faridulla Qureshi, 17 years and 3 months) from his conduct referred to above cannot by any stretch of imagination qualify as a child in need of care and protection as the acts committed by him are so grave and heinous warranting the  maximum penalty.’

Some may argue, and with substantial merit, that sending children to jail where they will interact with hardened criminals will expose them to baneful influences, coarsening their   conscience and is opposed to the overall objectives of the reformative theory of justice. But as the apex court has noted – the ends of justice means justice for all parties. It requires the preservation of a proper balance between the constitutional and statutory rights of an individual and rights of the people at large. Thus, the law has to be interpreted in a manner that it develops coherently in accordance with the principles, so as to serve, even-handedly, the ends of justice.

As a nation we have failed in our collective responsibility towards children in conflict with law.
Our failure to administer a beneficial legislation is not reason enough to deprive these children, who are in need of counseling and psychiatric assistance, to be pushed further into their miseries. Similar to the balance required to meet the ends of justice, one must balance the needs of delinquent children with the society’s expectations to live in a safe environment. The above mentioned second coming may indeed be an opportunity to achieve the desired goals of the JJA and one hopes that the Supreme Court finally lays down the law in regards to juvenile offenders and in doing so also demands immediate state action on the administration of the JJA so as to prevent first time children offenders from becoming hardened criminals.

The author is an advocate based in New Delhi

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