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 & 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 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 in all 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 Juvenile Justice (care & protection of children) Act (“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 & 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.
Has the JJA furthered the ends of justice for children that find themselves at the receiving end of our justice system? Has it fulfilled its statutory and societal objectives? Has it succeeded in providing care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles? Has its provided for children in conflict with law a child-friendly approach for adjudication of their cases with a view for their ultimate rehabilitation? Has the JJA come even close to providing for these children the privileges provided to them under various provisions of our Constitution?
Needless to say that as a nation we have failed in our collective responsibility towards children in conflict with law and in most States even the basic institutions mandated under the JJA are non-existent. Proof of this can be found in a March 2013 report published by the Asian Centre for Human Rights titled “India’s Hell Homes,” which details the state of juvenile justice homes in India. Reasons for this title can be found in the findings of the report that inmates at many juvenile homes are subjected to sexual assault and exploitation, torture and ill treatment apart from being forced to live in inhuman conditions. It further notes that girls remain the most vulnerable and these facts don’t change whether the juvenile justice home is located in the Delhi or in small towns.
One is not suggesting that those committing heinous crimes should be let off solely because they are below a certain age. On the contrary, an exception should in fact be made for children in conflict with law who are accused of committing heinous crimes and were reasonably aware of the consequences of their action, which can now be determined with some certainty by psychological evaluation since the protection under the JJA is available for innocent children who have a run-in with the law. And contrary to what some may say, medical science has now developed for us move away from the blunt parameter of age to more closely indentify true juveniles entitled to the exemptions under the JJA.
But equally, 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.
Satvik Varma is an advocate based in New Delhi & an Aspen India Leadership Fellow.