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Updated: August 23, 2013 00:17 IST

This is no child’s play

B. B. Pande
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A minor accused in the fatal gang rape of a woman in Delhi arrives at the Juvenile Justice Board in New Delhi on Monday. Photo; Sandeep Saxena
The Hindu A minor accused in the fatal gang rape of a woman in Delhi arrives at the Juvenile Justice Board in New Delhi on Monday. Photo; Sandeep Saxena

The Supreme Court has rightly dismissed challenges to the Juvenile Justice Act, but needs to do more to ensure its proper implementation

The role of minors in heinous crimes has aroused public interest. Among the questions raised are: why should children be accorded different treatment from adults in matters of serious offences? What should be the age standard for differentiating a child from an adult?

In July, the Supreme Court disposed of several petitions, filed mostly in the aftermath of the infamous Delhi gang rape incident of December 2012, which questioned the constitutional validity of the Juvenile Justice Act. These petitions had questioned the very idea of “different treatment to the child offender,” propagated way back in 1919-20 by the Indian Jail Committee. This principle, which was enshrined in the pre-independence Provincial Children Acts and was supported by Supreme Court rulings in the late 1970s and early 1980s, received legislative recognition in the first uniform and comprehensive Central Law Juvenile Justice Act, 1986, followed by the JJ Act. The U.N. Standard Minimum Rules for the Administration of Juvenile Justice, 1985 and the U.N. Convention on the Rights of the Child, 1989 (ratified by the Government of India in 1992) significantly influenced our new laws in defining ‘juveniles’ and ‘children’, providing processing and dispositional alternatives.

The petitions that challenged the Act did so on three grounds.

•The JJ Act is violative of Articles 14 and 21 and thus ultra vires the Constitution

•Section 2(k) and (l) of the Act that defines ‘juvenile’ or ‘child’ as any person below the age of 18 years runs contrary to Sections 82, 83 of Penal Code that confers total exemption to children below seven years of age and partial exemption to those below 12 years only.

•Sections 19 and 21 that prohibit creating judicial records of juvenile proceedings and publication of juvenile names and identity are in conflict with the interests of the society.

At stake in these hearings was over nine decades of juvenile justice jurisprudence in India.

Fortunately, the Supreme Court squarely rebutted the constitutional ultra vires arguments in its ruling disposing of the petitions: “The JJ Act is in tune with the provisions of the Constitution and the various declarations and conventions adopted by the world community represented by the United Nations” (para 44).

New jurisprudence

In doing so, the court also propagated a thesis that after the adoption of the Constitution, a new jurisprudence relating to children evolved and different treatment to child offenders was a part of this new child-centric jurisprudence. The court was equally emphatic in its rejection of the arguments for lowering the age to 16 years for two main reasons: first, Article 1 of the UNCRC requires the state parties to treat all persons below 18, irrespective of gender, as children, and second, there is adequate scientific data to indicate that brain growth continues till the age of 18. Therefore, the court explicitly preferred to go with the “collective wisdom of the Parliament” on the issue of age. The court also appeared to be giving a fair chance to the petitioner when it invited scientific data to prove the earlier onset of cognitivity. This way the court answered and dismissed all the petitions in a logical and a legal manner. But was this enough? Since this verdict came from a three-judge Bench, it is likely to give to the juvenile justice law a fairly long lease of life

Reacting to failures

What prompted the petitioners in those cases to mount a challenge to the JJ Act? It is possible that a small section among them may have been opposed to juvenile justice law in principle, but a majority was simply reacting to failures in implementing the Act. They were convinced that the care and protection of under-privileged children was more or less a sham; that unscrupulous persons were deploying children for the commission of organised crimes such as drug racketeering and human trafficking; that uneducated young men pose a menace to girls and young women, and so on. In fact, many of these concerns were brought expressly to the attention of the court. The court’s own observation reveals it was fully aware of the risks of non-implemented or under-implemented juvenile justice law: “[…] it is […] better to try to re-integrate children with criminal propensities into [the] mainstream than to allow them to develop into hardened criminals, which does not augur well for the future.” (para 48)

In dismissing these petitions, why then did the court not go beyond the point of a simple “no”? Why did it not do anything more to address the anxieties of the interveners and scores of others who aspire for an effective juvenile justice system, and the growing despair reflected in the petitions? Why were those responsible for the implementation of juvenile justice law not asked awkward questions and not directed to work on an urgent action programme?

It maybe be alright to talk of the virtues of judicial restraint and institutional conservatism in ordinary state of things, but when issues are raised concerning the most vulnerable sections of our society and doubts are raised about universally accepted norms and ideas, the occasion arises for a higher responsibility on public institutions to speak up loud and clear, and speak in a manner that will change things in the right direction. This is all the more important in a case like the present one, which had a Bench presided over by then Chief Justice Altmas Kabir, who knew more than anybody else about Indian children and who felt more than anyone else about them.

(The writer is former professor of Law, Delhi University, and member JJ (C&PC) Act, 2000, and chairman, JJ Rules 2007 drafting committees.)

More In: Comment | Opinion

While admitting the injustice borne by the victim of violence or crime
caused by a juvenile, we need to move from the emotional plane to a more
civilized rational sphere, and along with the enlightened judiciary and
the world of child and human rights principles, one must admit that if a
juvenile has grown into a criminal, its responsibility should be
primarily of the adult persons in his environment and the adult society
must be held responsible, and that concession accorded to such juvenile
is what the Juvenile Justice Act upholds.

from:  Jose P
Posted on: Aug 23, 2013 at 22:30 IST

This may be correct in the eyes of the existing law but it is grossly
unfair to the victim who faced brutality at the hands of so called
juvenile who was brutallest of all the accused but also the maximum
punishment is smaller than petty offences. Swamy's petition merited
serious soul searching by the court & should have been treated in the
light of the gravity of offence.But what can be done.

from:  Krishan Attri
Posted on: Aug 23, 2013 at 15:30 IST

because the punishments are nothing, juvenile also participated. if the punishment is
death penalty, no one dare to do such heinous crime.it is not late even now THE

government should awake up and act swiftly so that crimes decrease and Indias
image revive.

from:  kvl shanta
Posted on: Aug 23, 2013 at 15:10 IST

There are rules and then there would be exceptions which in turn proves the law. Agree whole-heartedly to the first comment on this article. We need to understand what is rotten and take the appropriate actions. I echo "No Mercy Please" as well

from:  D Das Gupta
Posted on: Aug 23, 2013 at 13:53 IST

It is true that only a small section of people are in principle against juvenile justice law but that does not mean that other people are just driven by sentiments rather they are unable to understand complexities involved with the issue. While scientifically it might be proved that brain's growth continues till the age of 18, but it is also depends upon social environment & also it varies from person to person. In this regard it is quit unjustified to a suspect to be trialled in totally different approach, who might crosses 18 years age bar by few days but still vulnerable. Any law should have consistency with contemporary social realities. So instead of limiting justice in to water tight compartment of age limits, Court should take subjective approach for the cases which involves heinous crimes like this to prevail spirit of law not word of law.

from:  kislaya sharma
Posted on: Aug 23, 2013 at 13:26 IST

Look.. no matter how much you may brag the point in the most convincing manner, millions like me will feel betrayed if the juvenile of Dec 16th Bus incident gets anything less than a life term.
Even if the brain grows till 18 years old, it doesnt sanction anyone to torture the genitals of a 23 year old girl the way that boy did.

No mercy please.

from:  Prashant Kaushik
Posted on: Aug 23, 2013 at 01:22 IST
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