The final hearing on the petitions filed by BJP leader Subramanian Swamy and the parents of the victim of the December 16 gang rape, challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act, 2000, has been started by the Supreme Court.
The petition was filed in order to seek for a fresh interpretation of the term, juvenile, in the statute and leaving it to the criminal court, instead of the Juvenile Justice Board, to decide the juvenility of an offender in heinous crimes. The apex court will also inspect the petition by the father of the gang-rape victim that the juvenility of an accused needed to be determined by a criminal court and not by the Juvenile Justice Board.
Commencing the arguments before a Supreme Court Bench headed by Chief Justice P. Sathasivan, Dr. Swamy argued that the Act provides for a restrictive interpretation of the term, a person below 18 years is a minor, and which clearly violates the United Nations Convention for the Rights of the Child (UNCRC) and Beijing Rules. According to these rules, the assumption of the age of criminal responsibility should be fixed, keeping in mind the mental and intellectual maturity of the offender. Dr. Swamy said he was neither requesting that the 18-year-limit be lowered nor his plea was based on certain individual. The reference in his petition to the juvenile, one of the accused in the December 16 gang-rape case, was simply an illustration.
The Centre has argued that the essence of the special Act, like the Juvenile Justice Act, could not be challenged and has opposed his plea saying he was making an attempt to reinterpret the definition of juvenile. It said the Juvenile Justice Act was enacted for minor offenders and did not deal with the offences in the penal code. According to Dr. Swamy, the Juvenile Justice Bill was passed in haste and there was no discussion before enacting it in the Parliament on December 30, 2000, though in the Preamble to the Act, it was confirmed that the sanctioned UNCRC and Beijing Rules would be followed.
Arguing that the interpretation of juvenile as anyone under the age of 18 years under the Act could lead to differences and irrationalities, Swamy said this could encourage terrorists to choose a person of 17 year 11 months to become a suicide bomber. He said the Act, which has been poorly drafted, does not truly apply the approved Convention as required under Article 253 of the Constitution or follow the Beijing Rules as required in the Preamble to the Act. Also, it does not reveal the objective of Parliament judged by the Objects and Reasons for the Act.