The Supreme Court on Wednesday reserved its order on the maintainability of a Public Interest Litigation (PIL),filed by BJP leader Subramanian Swamy,seeking fresh interpretation of the term ‘juvenile’ in the statute concerned.
“We will first decide the maintainability of your (Swamy) special leave petition and if we agree,only then,we will hear you on merits,” a bench headed by Chief Justice P Sathasivam said,adding the order would be pronounced within a week.
The order was reserved after Swamy clarified to the bench that his petition was not “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.
Additional Solicitor General Siddharth Luthra,appearing for the Centre,opposed the plea of Swamy and raised the plea of its maintainability on the ground that a third party has no legal authority to intervene.
“A third party intervention in a criminal case is not allowed and there was no problem if the petition is not individual-centric. Pandora’s box would open if such kind of petitions are allowed,” Luthra said.
The counsel for the juvenile,facing trial in the December 16 gangrape case,also took the identical plea and said Swamy is “neither the complainant nor a witness nor related to victim or to the accused”.
“The whole objection is misconceived. I have not come against the order of Juvenile Justice Board. I have come against the order of the Delhi High Court. Moreover,the question of maintainability was not raised when the matter was first taken up by the High Court,” Swamy said.
Referring to a provision of the Juvenile Justice (Care and Protection of Children) Act,he said it was “badly” drafted and needs to be revisited as it was in violation of the United Nations Convention for the Rights of the Child (UNCRC) and Beijing Rules on the issue.
Swamy has said the “mental and intellectual maturity” of minor offenders be considered instead of the age limit of 18 years while fixing their culpability.
Earlier,the Supreme Court had said the Juvenile Justice Board (JJB) be informed not to pronounce its verdict on the alleged role of a minor in the December 16 gangrape and murder case till it decides the PIL.
The bench,however,had said the issue raised in the petition needed to be examined along with maintainability of the plea.
After the apex court had on July 23 agreed to hear his plea,the JJB had deferred till August 5 the pronouncement of its verdict on the alleged involvement of the juvenile accused in the December 16 gangrape and murder case.
The juvenile was one of six persons who had allegedly gangraped a 23-year-old girl in a moving bus here. The victim died in a Singapore hospital on December 29.
Of the other five accused,four – Mukesh,Pawan Gupta,Vinay Sharma and Akshay Thakur – are facing trial before a fast track court. Proceedings against key accused Ram Singh abated after his death on March 11 when he was found hanging in his cell in Tihar Jail here. In his petition,Swamy has said the Juvenile Justice Act
provides for a “straitjacket” 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.
The UNCRC and Beijing Rules say the presumption of “the age of criminal responsibility” be fixed while “bearing in mind the mental and intellectual maturity” of the offender,he said.
A provision of the JJA says,”Juvenile or child means a person who has not completed eighteenth year of age.”
“I submit that since it was the intention of Parliament,as stated in the Preamble,to enact JJA in consonance with the ratified UNCRC and Beijing Rules,it is prayed that this court,after hearing the Union Of India (the central government) if necessary,may read the words ‘mental and intellectual maturity’ into the wording of Section 2(k) on the age of innocence,” he has said.
Swamy had also cited the alleged role of the juvenile in the December 16 gangrape case.