The Supreme Court today refused to lower the age of juvenile from 18 years saying the legislature has fixed the age which is constitutionally permissible.
A three-judge bench, headed by Chief Justice P Sathasivam, rejected two petitions, filed by BJP leader Subramanian Swamy and parents of December 16 gangrape victim, challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000.
“If the legislature has adopted the age of 18 as the dividing line between juveniles and adults and such a decision is constitutionally permissible, the enquiry by the courts must come to an end. Even otherwise there is a considerable body of world opinion that all under 18 persons ought to be treated as juveniles and separate treatment ought to be meted out to them so far as offences committed by such persons are concerned,” the bench, also comprising justices Ranjan Gogoi and Shiv Kirti Singh, said.
The petitioners had sought fresh interpretation of the term ‘juvenile’ in the statute and leaving it to the criminal court, instead of Juvenile Justice Board (JJB), to determine the juvenility of an offender in heinous crimes.
They pleaded the juvenile accused in December 16, 2012 gangrape victim be prosecuted in a criminal court in view of the gravity of his offence. The bench, however, upheld the constitutional validity of the Act and dismissed the petitions.
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The court said in its 68-page judgement that the object of the JJ Act was to rehabilitate such offenders so that they could become “useful members” of the society later on.
“India has accepted the above position and legislative wisdom has led to the enactment of the JJ Act in its present form. If the Act has treated all under 18 as a separate category for the purposes of differential treatment so far as the commission of offences are concerned, we do not see how the contentions advanced by the petitioners to the contrary on the strength of the thinking and practices in other jurisdictions can have any relevance,” it said.
The apex court also said there was no difficulty in understanding the clear and unambiguous meaning of different provisions of the JJ Act.
“There is no ambiguity, much less any uncertainty, in the language used to convey what the legislature had intended. All persons below the age of 18 are put in one class/group by the (JJ) Act to provide a separate scheme of investigation, trial and punishment for offences committed by them.
“A class of persons is sought to be created who are treated differently. This is being done to further/effectuate the views of the international community which India has shared by being a signatory to the several conventions and treaties already referred to,” the bench said.
It also said the Indian Penal Code (IPC) applies to all juveniles and the only difference was that a different scheme for trial and punishment is introduced by the JJ Act in place of regular provisions under the CrPC for trial of offenders and punishments under the IPC.
“Courts must read the legislation literally in the first instance. If on such reading and understanding the vice of unconstitutionality is attracted, the courts must explore whether there has been an unintended legislative omission.
“If such an intendment can be reasonably implied without undertaking what unmistakably would be a legislative exercise, the Act may be read down to save it from unconstitutionality,” it said.
The bench further said “having taken the above view, we do not consider it necessary to enter in the consequential arena, namely, the applicability of the provisions of Article 20(3) of the Constitution and Section 300 of the Code of Criminal Procedure to the facts of the present case as on the view that we have taken no question of sending the juvenile to face a regular trial can and does arise.”
“We refuse to be tempted to enter into the said arena which is primarily for the legislature to consider. Courts must take care not to express opinions on the sufficiency or adequacy of such figures and should confine its scrutiny to the legality and not the necessity of the law to be made or continued,” the bench said.
The 23-year-old gangrape victim’s father had earlier told the court that the August 31, 2013 verdict of JJB was not acceptable to the family and so they challenged the Act as there was no other authority which they could approach for such relief.
He had sought a direction to declare as unconstitutional and void the JJA to the extent it puts a blanket ban on the power of criminal courts to try a juvenile offender for offences committed under IPC.
In his petition, Swamy had said the Act provided for a “straitjacket” interpretation of the term ‘juvenile’ that a person below the age of 18 years was 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.
Swamy had said he was neither seeking lowering the 18 years limit set in JJA nor his plea is individual-centric and the reference of the juvenile, one of the accused in the December 16 gangrape case, in his plea was merely an illustration.