SC should wait for outcome of JJ Bill

Juvenile Justice (Care and Protection) Bill 2014 was uploaded on the website of the Ministry of Women and Child Development in June this year for receiving comments from the people concerned and later introduced in Lok Sabha on August 12. 

The Bill, among other things, provides for selective transfer of children above the age of 16 years committing heinous offences to the adult court to receive adult punishment. Many articles have appeared in the press criticising the Bill and it has been referred to the Parliamentary Standing Committee which has still to submit its report. However, the Bench of Justice Dipak Misra, Justice U U Lalit and Justice Rohinton Nariman do not seem to be aware of any of these developments.

On October 27, this Bench in CBI v Swapan Roy, made two suggestions to the Attorney General to find out from the government, “whether there is any kind of consideration as regards the reduction of age and whether the juvenility will depend on the nature of offence committed.” On November 24, it directed the AG to “put it across to the competent authorities so that care is taken to the extent that the nature of the offence has some nexus with the age in question, for the cry of the collected is to live in a peaceful society that respects life, dignity and others' liberty.”

Such inquiry and direction by the Supreme Court, at a time when the Juvenile Justice Bill is pending in Parliament, is not only contrary to the practice of judicial self-restraint but is also improper and uncalled for and reflects the widely held misconceptions and beliefs regarding juvenile justice. Courts, for long, have applied the doctrine of judicial self-control by limiting themselves to seeking clarifications of facts, evidence and legal provisions relevant to determine the issue before them and abstain themselves from discussing issues of academic interest. However, in this case, the Court seems to be making a full-fledged inquiry in a matter that has no relevance to the issue before it.

The present appeal by the CBI before the Supreme Court is against the order of the Calcutta High Court which declined to interfere with the determination of the age of accused on the ground that there was proof that he was a juvenile on the date of offence. It is of no relevance that the government is reviewing the scheme of juvenility determination. Any changes, if introduced, will govern the cases arising after the change is brought in force and not the cases which are already before the court.

These questions are also against the judicial propriety for being against the decisions of the SC upholding the constitutionality of no exclusion of children for any offence under any circumstance under the existing Juvenile Justice Act in Salil Bali (2013) and Subramanian Swami (2014). 

By asking these questions at this time when the Bill is pending before Parliament, the SC seems to be propagating the government’s agenda of exclusion of children from juvenile justice focusing on ‘gravity of crime’ and not by age of offender even though such exclusion is in complete violation of India’s legally binding obligation under the Convention on the Rights of Child signed in 1992. The CRC read with General Comment No 10 of the Committee under the CRC, binds India and all the countries of the world to deal with all children below the age of 18 years under the special provisions of juvenile justice without any exception.
 Erroneous assumption

The SC order further reflects the erroneous assumption that “most of the juveniles are engaged in horrendous and heinous crimes like rape, murder and drug-peddling etc.” The official data published by the National Crime Records Bureau show that barely three out of every one lakh children have been arrested for commission of any offence. In 2013, total 1388 and 845 children in the age group of 16-18 out of the total population of more than 7 crore children in India in this age group were arrested (not convicted), respectively, for rape and murder.

On November 20, 2014, it was reported in newspapers that the data submitted to the Delhi High Court showed that “Contrary to public perception, less than 8 per cent of the accused in rape cases, only 3 per cent of the accused in molestations are under 18 years of age.” Close relatives such as the father, step-father, brother, cousin, uncle, brother-in-law, father-in-law, neighbour or family friend are responsible for 9 out of 10 rape cases and not children. 

For the long term security of society and better future, children belong in schools and not in jails. After spending long term in jails, these adolescents are more likely to come out hardened adult criminals rather than robust and responsible citizens. Countries that have been excluding children for a long time have found that “Teenagers prosecuted in adult courts or who do time in adult jails fare worse in life and can go on to commit more violent crimes than those who are handled by the juvenile justice system.”

(The writer is Professor of Law, University of Delhi)

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