Lapse in immediate transfer of declared juvenile to observation home serious infraction of Article 21: Supreme Court

The bench emphasised the statutory mandate of the Juvenile Justice Act is not merely procedural but also advances the guarantee under Article 21 of the Constitution.

New Delhi: The Supreme Court has said that the prompt and humane treatment of CCL (child in conflict in law) is required to be undertaken in light of the objectives of the Juvenile Justice Act.

A bench of Justices J K Maheshwari and Atul S Chandurkar emphasised the statutory mandate of the Juvenile Justice Act is not merely procedural but also advances the guarantee under Article 21 of the Constitution.

"Any lapse in ensuring immediate transfer of a declared juvenile to an observation home from regular jail not only defeats the object of the legislation but also results in a serious infraction of the Juvenile’s right to life,'' the bench said.

Dealing with a plea by a juvenile delinquent in a twin murder case, the bench took exception to his incarceration in a normal jail despite that he was between 16 and 18 years of age and had been declared a juvenile, albeit, in connection with a heinous offence.

As the court expressed its utter dismay over the fact that despite being declared a juvenile, the appellant had remained lodged in a regular jail for more than two and a half years, the state government agreed to pay Rs five lakh as compensation to the appellant.

Ordering release of the appellant on bail, the bench sought a report from the Allahabad High Court's registrar general, who furnished a standard operating procedure in such cases. The court also found the High Court's observations in respect of offence as wholly unwarranted to deny the appellant bail.

The court asked Chief Justices of all the High Courts to examine the SOP and, if no such mechanism has already been implemented in their respective jurisdictions, take suitable measures to ensure effective implementation of the statutory mandate under the JJ Act, particularly with regard to prompt communication of orders declaring a person as juvenile and immediate transfer of juveniles lodged in regular jail to observation homes upon such declaration, the bench said.

As the implementation of such SOPs ultimately rests with the concerned State Governments, the bench said that a copy of this order along with the SOP be also transmitted to the Chief Secretaries of all the States and Union Territories of India for appropriate action

In its recent judgment, the court pointed out, only in a situation where the CCL’s conduct is such that it would not be in his interest or that of other children, could the JJB (juvenile justice board) consider sending him to other place of safety.

"The discretion vested under Section 18(2) is to be exercised in furtherance of reformative and rehabilitative objectives. Further, where, upon preliminary assessment under Section 15, it is found that the child ought to be tried as an adult, the matter is to be transferred to the Children’s Court in accordance with Section 18(3)," the bench said.

In a case where the JJB has declined to declare the child as a juvenile and the matter thereafter comes before the Children’s Court under Section 18 read with Section 19 of the JJ Act, the said court is first required to determine on its own whether the child should be tried as an adult, the bench added.

Such determination must be made while keeping in mind the mandate of Section 21 i.e., what orders may not be passed if the juvenile is declared CCL. It should be done while acknowledging the child’s special needs, the principles of fair trial, and the requirement of maintaining a child-friendly atmosphere, the bench added.

"In case the court finds that trial of the juvenile as an adult is not required, it is open to the Children’s Court to conduct an inquiry as a Board and pass appropriate orders in terms of Section 18. The scheme of the JJ Act, thus, envisages a comprehensive and robust procedure to ensure that the rights of the child are not thwarted at any stage,'' the bench said.