Can't detain juvenile further: SC

Cites absence of legislative sanction

The Supreme Court on Monday dismissed a plea by the Delhi Commission for Women against the release of the juvenile convict in the December 16, 2012, gang-rape case, saying there was no legislative sanction to detain him beyond three years.

A bench of justices Adarsh K Goel and U U Lalit also rejected a submission that an independent body must be constituted to assess the mental condition of the convict, now 20 years old, and report be called for before setting him free.

“In no case, the period of detention can go beyond three years. By power of interpretation, we can’t take somebody’s right under Article 20 (protection in respect of conviction for offences) and 21 (right to life and liberty) under the Constitution. In fact, there is a specific provision in contra,” the bench said.

The Delhi Commission for Women (DCW), through its chairperson Swati Maliwal Jaihind, had on Saturday night approached the court to prevent the release of the juvenile on December 20. The court, however, fixed the matter for hearing on Monday, refraining to pass immediate direction.

Senior advocate S Guru Krishnakumar, appearing for the DCW, contended that there was no report in place that the juvenile has been reformed. He claimed that there was an Intelligence Bureau report stating that he appeared to have been radicalised for being in company of 2011 Delhi High Court blast case detenue.

“The three-year detention is not written in stone. If there is no reformation in place, should it not be considered before releasing the juvenile,” he asked, citing the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.

The bench, however, said, “Given the position of law as it stands today, what kind of interim order do we pass? Suppose we say the child needs to be detained, there has to be clear legislative sanction. This can’t go beyond statutory provision.” The counsel, then, urged the court to exercise its extraordinary power under Article 142 of the Constitution to pass a direction to the Juvenile Justice Board to assess his mental condition, in aid to the reform process.

“We share your concern. But as law stands today, it can’t go beyond three years,” the bench said, while pointing out that it was for the Delhi government to put in place a reform programme for the juvenile convict.The bench also pointed out that the Delhi High Court was already seized up with a PIL filed by BJP leader Subramanian Swamy and that had agreed to examine a larger question of whether there is a need to ascertain the fact of reformation of the juveniles in conflict with law before they are released from the special home on expiry of the period of stay.

During the hearing, the bench also questioned Additional Solicitor General Pinky Anand, appearing for the Centre, for supporting the DCW, saying, “you were doing so without making a law”.

The convict was sent to a special home as he was a juvenile at time of the crime, in which, he, along with five others, brutally raped a paramedical student, resulting in her death 13 days later.