Ultimately, he has been released! But before that the Younger offender, the deadliest among the accused of the Nirbhaya case or call it Delhi Braveheart case had raised the issue of conviction of the Juveniles or child- offenders and their punishment to the higher degree for the serious and heinous offences. The cries of the public, media and specially the petition by the NGOs and Delhi Commission for Women reaching up to the Supreme Court against his release gave renewed impetus to me to go into question “What the Laws is and What the Law ought to be?” on the Juveniles or child-offenders at the time when offences are committed.
Understanding in common language in the jurisprudence of constitutional law, Our Constitution through article 20(1) says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is trite law that the sentence impossible on the date of commission of the offence has to determine the sentence impossible on completion of trial. Under article 20(1) of the Constitution of Bharat what is prohibited is the conviction and sentence in criminal proceedings under ex post facto law as is evident from the plain reading of the said article and upheld by the Hon’ble Supreme Court in Ravinder Singh Vs. State of Himachal Pradesh reported in AIR 2010 SC 199.
Coming to the issue on child rights, the General Assembly of the United Nations has adopted the Convention on the Right of the Child on November 20, 1989. The Government of Bharat ratified the Convention on December 11, 1992. The Convention on the Rights of the child has prescribed a set of standards to adhere to by all States parties in securing the best interests of the child. The clause (3) of Article 15 providing power to State to make special provision for women and children, clauses (e) & (f) of Article 39, Article 45 and 47 of the Constitution of Bharat in totality impose on the State a primary responsibility of ensuring that all need of children are met and that their basic human rights are fully protected. With this aim and objective and above mandate, the Juvenile Justice (Care and Protection of Children) Act, 2000 popularly known as “JJ Act” was passed on 30th December, 2000. In Kallu Vs. State of Haryana reported AIR 2012 SC3212, the Hon’ble Supreme Court held that the Juvenile Act is intended to protect the juvenile from the rigours of a trial by a Criminal Court. It prohibits sentencing of a juvenile and committing him to prison. As its preamble suggests it seeks to adopt a child-friendly approach in the adjudication and disposition of matters in the interest of children and for their ultimate rehabilitation. The “JJ Act” in the year, 2006 (w.e.f.22.08.2006) underwent massive and important amendments and in Section 2(k) it defines “juvenile” or “child” a person who has not completed eighteenth year of age. For the purpose of our discussion on the topic, the relevant definition is in Section 2(l) which says “juvenile in conflict with law” means juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. The Hon’ble Supreme Court had settled the law that in case, exact assessment of the age cannot be done, then the Court, for reason to be recorded, may, if considered necessary give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year and also the “JJ Act” gives right to an accused to raise question of juvenility at any point of time and if such an issue is raised, the Court is under an obligation to make an inquiry and deal with the question. The section 15 gives power about order that may be passed regarding juvenile and section 16 provides about order that may not be passed against juvenile by the Juvenile Justice Board. Section 15(1) says that where the Board is satisfied on inquiry that a juvenile has committed an offence, then notwithstanding anything to the contrary in any other law for the time being in force, the Board may if it so thinks fit, apart from other directions envisaged, direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well being of the juvenile for any period not exceeding three years; make an order directing the juvenile to be sent to a special home for a period of three years; provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit. The section 16(1) says that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to life imprisonment for life, or committed to prison in default of fine or in default of furnishing security; provided that where a juvenile who has attained the age of Sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. As per section 16(2), on receipt of report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit, provided that the period of detention so ordered shall not exceed in any case the maximum period i.e. 3 years, provided under section 15 of this Act. Under the Act, no juvenile can be charged with or tried for any offence together with a person who is not a juvenile.
Any deviation from the above settled position in law is against the legislative mandate, at present the “JJ Act”, is not permissible and the juvenile in conflict with law is entitled to be released after the expiry of maximum 3 years from the date of his detention. The Hon’ble Supreme Court, very aptly and correctly declined to block the release of the youngest offender in the December 16 Delhi Gang rape case, saying laws framed by Parliament do not permit further detention despite growing calls for harsher penalties for juvenile
Law being an instrument of social change and certainly, dealing with juvenile criminals, had led to passing of the Juvenile Justice (Care and Protection of Children) Bill, 2014 by both houses of the Parliament as on today, which includes amendments to allow 16-18 years old to be tried as adults and What the Law ought to be? The JJ Bill 2014 says that the juveniles aged 16-18 who commit heinous offences like rape or murder shall be punishable with 7 years or more. However, there will be no death penalty. The Juvenile Justice Board, after conducting an inquiry, will determine whether a juvenile offender will be sent for rehabilitation or tried as an adult. These amendments bring the law in Bharat at par with the US and UK, where Juvenile Justice Courts have been given the flexibility to waive their jurisdiction in favour of adult courts for heinous crimes. The Rajya Sabha (Upper House) very appropriately and timely heard the growing calls for harsher penalties for juvenile criminals and the observations of the Hon’ble Supreme Court, the editorials of the Hindustan Times and Times of India by title “Emotion cannot cloud the law” and “Take a Call” respectively
and finally passed the Bill on December 22, 2015. Conclusively, we can say that now, after getting the Rajya Sabha nod of the JJ Bill 2014, ‘What the law ought to be?’ now become a step closer towards ‘What the law is?’ Now the law will be able to contain the juvenile crimes, the fastest segment of growing crime and the focus should be more on to take remedial measures to check this rising menace to the Society and also becoming a world phenomenon. Personally, I feel that to curb the rising Juvenile crimes or crimes against women Our Government should take steps to introduce compulsory military training from School level to graduation which will inculcate a national character by increasing self-defence and patriotism. Then our girls will be bold enough to fight out themselves till the police or government agencies reach them in distress for help.
Sanjay Kumar Visen (The writer is Advocate-On-Record, Supreme Court)