New Delhi: The Supreme Court today commenced the final hearing on the pleas seeking fresh interpretation of the term 'juvenile' in the statute and leaving it to the criminal court, instead of the Juvenile Justice Board, to determine the juvenility of an offender in heinous crimes.
Two petitions were filed by BJP leader Subramanian Swamy and parents of the victim of 16 December gangrape, who have challenged the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000.
Representational image. AFP
Swamy, who commenced the arguments before a bench headed by chief justice P Sathasivan, contended that the Act provides for a "straitjacket" interpretation of the term 'juvenile' that a person below the age of 18 years is a minor and it was in violation of the United Nations Convention for the Rights of the Child (UNCRC) and Beijing Rules on the issue.
The UNCRC and Beijing Rules say the presumption of "the age of criminal responsibility" be fixed while "bearing in mind the mental and intellectual maturity" of the offender, he said.
Swamy said he was neither seeking lowering the 18 years limit set in JJA nor his plea is indvidual-centric and the reference of the juvenile, one of the accused in the 16 December gangrape case, in his plea was merely an illustration.
He said with the age of consent in sexual intercourse being lowered to 16 years, in rape offences, 18 years has to be realistically and purposely construed by considering the "mental and intellectual maturity" of minor offenders while fixing their culpability.
The Centre opposed the plea of Swamy saying that the spirit of the special Act like JJA cannot be challenged and the BJP leader was making an attempt to reinterpret the definition of juvenile.
It said the JJA did not talk about the offences in the penal code and has been enacted for minor offenders.
The BJP leader claimed that JJ Bill was hurriedly passed and enacted, without discussion, in Parliament on 30 December, 2000 though in the Preamble to the Act, it was affirmed to implement the ratified UNCRC while adhering to the Beijing Rules.
"The impugned current straitjacketed interpretation of juvenile as anyone under the age of 18 years under the JJ Act thus could lead to anamolies, and absurdities," he said and elaborated by saying that it has the effect of encouraging terrorists to choose a 17 year 11 months person to become a suicide bomber.
"Thus the poor and careless drafting of the Act has obvious left gaps in the wording of the relevant clauses of the Act and hence it does not faithfully implement the ratified Convention as required under Article 253 of the Constitution or adhere to the Beijing Rules as required in the Preamble to the Act nor reflects the intention of Parliament judged by the Objects and Reasons for the Act.
"To prevent serious miscarriage of justice and anomalies in the application of the statute, such as in dealing with terrorist crimes, the gaps in drafting the statute have to be rectified by judicial intervention," he submitted.
The apex court will also examine the plea by the father of the gangrape victim that the juvenility of an accused needs to be ascertained by a criminal court and not by the Juvenile Justice Board.
The victim's father had said the August 31, 2013 verdict of the Board was not acceptable to the family so they are challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000, as there is no other authority concerned to which they can approach for such relief.
He has sought a direction to declare as unconstitutional and void the JJA to the extent it puts a blanket ban on the power of the criminal courts to try a juvenile offender for offences committed under the IPC".
The petition filed through advocate Aman Hingorani said the juvenile "is liable to be tried and punished by the criminal courts for the aforesaid offences, complete with the judicial discretion on established principles of law regarding the award of sentence keeping in view, amongst other factors, the nature and gravity of the offence".
The petition referred to the trial court verdict by which four adult accused were convicted and sentenced to death and sought similar trial for the then juvenile offender, who has now turned major.
"One of the accused (Respondent No 2--juvenile), however, has not been tried at all for the offences committed under the Indian Penal Code by the criminal court on the premise that he is a juvenile in conflict with law aged 17 years," the petition, in which the Centre and the accused have been named as respondents, said.
It also stated that "the blanket protection to juvenile offenders from being tried by the criminal courts for offences under the IPC, is an instance of legislative adjudication, and hence unconstitutional".
A provision of the JJA says "'juvenile' or 'child' means a person who has not completed eighteenth year of age."
The juvenile, who was six months short of 18 years at the time of incident, was convicted for gangrape and murder of the 23-year-old girl but he got away with a maximum of three years imprisonment mandated under the juvenile law by the Juvenile Justice Board here.
PTI
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