Dr. Subramanian Swamy’ SLP on the Juvenile question

Claim by Dr. Swamy:

Sections 2(k) and 2(l) of the Act thus is supposed to define a “juvenile” and a “juvenile  in conflict with the law” in accordance with the UN CRC and the Beijing Rules.

But since the drafting has been poor and has obvious gaps, hence it does not faithfully implement the ratified Convention. This has to be rectified.

Validity of the claim:

Let us examine:

Beijing Rules defines a “Juvenile” as:

A juvenile is defined as a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult. Thus the Rules look to the nature of the punishment of the offence rather than the offender in determining who is a juvenile. The later JDL Rules amend the definition of juvenile to any person under the age of 18, which is consistent with the definition of a child given at Article 1 of the Convention on the Rights of the Child.

Article 1 of Convention on the Rights of the Child states:

 

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.

Beijing Rules defines an “Offence” as:

An offence is any behaviour that is punishable by law under the States respective legal systems.

Beijing Rules defines a “Juvenile Offender” as:

This is a child or young person who is alleged to have committed or has been found to have committed an offence.

Since the age of attaining majority in India is also eighteen years, “juvenile” has been defined in accordance with UN CRC and the Beijing Rules as:

"juvenile" or "child" means a person who has not completed eighteenth year of age;

The “juvenile offender” of Beijing Rules has been defined precisely as "juvenile in conflict with law", in accordance with Beijing Rules as:

"juvenile in conflict with law" means a juvenile who is alleged to have committed an offence;

There is nothing to suggest that the drafting has been poor, at least with respect to the definition of a “juvenile” and a “juvenile in conflict with the law”.

Claim by Dr. Swamy:

Now coming to the Rules, these were framed only in 2007, and under Rule 3(2) the Principle of Presumption of Innocence is defined under (a) and (d) of the said Rule. But there is no Rule for rebuttal of presumption.

Validity of the claim:

Any rule for rebuttal of presumption will go against the intention of the Parliament in “securing the best interests of the child”.

Claim by Dr. Swamy:

But more importantly, under JJA Rule 3(2)(d)(i), the presumption of the age of criminal responsibility is fixed on Beijing Rule No. 4(1), i.e.,  “bearing in mind the facts of the mental and intellectual maturity” of the offender.

But Article 17.1(c) of the Beijing Rules [p.133] states that nevertheless in certain situations/ offences sentence of imprisonment has to be passed not only to punish the offender but also to protect public  safety.

But in the enactment of the JJA, these have not been fully adhered to or followed because the age of a juvenile has been blandly and rigidly fixed at 18 years. I am not contesting that here.

Validity of the claim:

17.1(c) of the Beijing Rules states: 

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;

JJA has addressed this issue in para 16.

16. Order that may not be passed against juvenile.-

(1) 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 life imprisonment, or committed to prison in default of payment 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 of 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.

(2) On receipt of a 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 the maximum period of imprisonment to which the juvenile could have been sentenced for the offence committed.

Not withstanding the age of criminal responsibility, both the Beijing Rules and Convention on the Rights of the Child define a “juvenile” to be a person who has not completed eighteenth year of age. Altering this would amount to dilution of the intention of the Parliament as mentioned earlier.

Claim by Dr. Swamy:

It was the intention of Parliament read the words “ mental and intellectual maturity” into the wording of Section 2(k) on the Age of Innocence.

Validity of the claim:

Rules under the Juvenile Justice (Care and Protection of Children) Act 2000 states that:

Age of innocence is the age below which a juvenile or child or a juvenile in conflict with law cannot be subjected to the criminal justice system. The Beijing Rule 4(1) clearly lays down that “the beginning of the age of criminal responsibility shall not be fixed at too low an age level bearing in mind the facts of mental and intellectual maturity”. In consonance with this principle, the mental and intellectual maturity of juvenile or child or a juvenile in conflict with law below eighteen years is considered insufficient through out the world. 

The intention of the Parliament was to secure the best interests of the child and not to read the words “mental and intellectual maturity” into the wording of Section 2(k). Section 2(k) does not define the age of innocence. Age of innocence is applicable in deciding whether the juvenile in conflict with law will be subjected to the criminal justice system or not, and not whether he is a juvenile or not.

Claim by Dr. Swamy:

Furthermore there is no blanket ban or prohibition in not holding Juvenile Offender accountable as an adult for their offences.

Validity of the claim:

Application of the Rules of Beijing Rules states that:

The Rules also apply to juveniles who may be punished for any specific behaviour not punishable if committed by an adult, "status offences", (e.g. truancy), juveniles in welfare and care proceedings and young adult offenders.

This implies that the rules can be extended to young adult offenders also, which pre-empts the assumption that there is no blanket ban or prohibition in not holding Juvenile Offender accountable as an adult for their offences. Furthermore, the entire act is to protect the juvenile offender from being treated as an adult.

Claim by Dr. Swamy:

The JJ Act has not, as required by Sections 37 and 40 UN CRC and Rule 17 of the Beijing Rules, specified/itemized the maturity level of the alleged offender, his/her ability to differentiate between good and bad, right and wrong.

Validity of the claim:

Sections 37 and 40 UN CRC and Rule 17 of the Beijing Rules have been addressed in Chapter IV of JJA.

Submission by Dr. Swamy:

It is also submit that this Hon’ble Court transfer this juvenile case in JJB of the Nirbhaya rape and murder crime to the Sessions Special Court trying the other five adult offenders [vide Constitutional Bench judgment in (1953) SCR 1188 at 1197-98].

The intention of Parliament is thus being clear, the same now needs to be interpreted by this Hon’ble Court and accordingly read into the relevant sections of JJA.

This is the rarest of rare case for invoking the Doctrine of Casus Omissus.

Maintainability of the submission:

As long as the person falls under the definition of a “juvenile”, it may not be tenable to transfer the case to the Sessions Special Court trying the other five adult offenders.