A plea filed by the father of the December 16 gang rape victim that the Juvenile Justice Board cannot establish the juvenility of an accused which needs to be ascertained by a criminal court, got an answer, with the Centre informing the Supreme Court that the law did not allow the juvenile, convicted by juvenile board in the December 16 gang rape, to be tried twice for the same offence as sought by the parents of victims who demanded his retrial by a criminal court.
The opinion shared by the Ministry of Women and Child Development was that the Juvenile Justice (JJ) Board has already given its verdict of guilt of the juvenile and the prayer for his fresh trial has been decided unneeded, it would not be allowed both legally and constitutionally to put him on trial again. In its affidavit the Ministry made it clear that under Article 20 of the Constitution as also Section 300 of Criminal Procedure Code, there can be no second trial for the same offence, and the adjudication of guilt of the juvenile offender having been determined by the Juvenile Justice Board Board under Juvenile Justice (Care and Protection of Children) Act, 2000, the second prayer does not survive nor was sustainable.
Seeking fresh interpretation of the term juvenile, the victim’s parents filed a petition with the plea of BJP leader Subramanian Swamy who argued that the Juvenile Justice (Care and Protection of Children) Act provides for a restriction 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. He said the UNCRC and Beijing Rules the presumption of “the age of criminal responsibility” be fixed while “bearing in mind the mental and intellectual maturity” of offender. A Supreme Court bench headed by Justice B.S. Chauhan heard this issue.
The victim’s father had raised the identical issue and stated that they are challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000 delivered by the board on August 31, 2013 as it was not acceptable to the family and there is no other authority concerned to which they can approach for such relief. A direction has been sought by the father of the victim to declare “as unconstitutional and void the Juvenile Justice (Care and Protection of Children) Act 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”.
According to the petition, which 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, considering the nature and gravity of the offence, among other factors, 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.
The petition, in which the Centre and the accused have been named as respondents, stated that the criminal court did not try at all, one of the accused (Respondent No 2--juvenile) for the offences committed under the Indian Penal Code on the proposition that he is a juvenile in conflict with law aged 17 years and it is unconstitutional as the extensive protection to juvenile offenders from being tried by the criminal courts for offences under the IPC, is an instance of legislative adjudication.
On the night of December 16, 2012, six persons gang raped and brutally assaulted the girl in a moving bus in New Delhi, among which one was the juvenile, so he was tried by the Board, who was six months short of 18 years at the time of incident but he was only awarded a maximum of three years imprisonment authorized under the juvenile law by the Juvenile Justice Board here. The victim died in a Singapore hospital on December 29, 2012. According to a provision of the Juvenile Justice board “’juvenile’ or ‘child’ means a person who has not completed eighteenth year of age.”
Verma commission appointed for proposing amendments in criminal law has observed in its findings that age under juvenile justice act ought not to be reduced to 16 from 18.
This is for the third time Supreme Court is considering the similar plea for lowering the age of juvenile within a span of five months. In the month of july 2013 a three judge bench comprising of Altamas Kabir J, Surinder Kumar Nijjar J, and Chlemeswar J has observed that Juvenile Justice Act is in tune with provisions of constitution of India and various declarations and conventions adopted by world community. In August 2013 Subramanian Swamy has filed a petition for laying down an authoritative interpretation of Sections 2(l) and 2(k) in order to lower the age of juvenile which is presently pending before a three judge bench consisting of Sathasivam J, Ranjana Prakash Desai J, Ranjan Gogoi J.