In fact: Supreme Court ruling window to challenge new juvenile law

In all these legislation, a ‘minor’ or a ‘child’ is someone who has attained a minimum age; none of these laws create an exception by classifying them on the basis of their ‘mental ability to understand consequences of their actions’, or qualify their actions on the basis of severity or their behaviour.

That makes the amended Juvenile Justice (Care and Protection of Children) Bill, 2015, the only law in India which will legally validate an investigation into the ‘mental ability’ of a ‘child’. This investigation will have the acts committed by a delinquent at its starting point and will tend to ascertain mental capability of comprehending the outcome of such acts.

The 2015 Bill, which will replace the Juvenile Justice (Care and Protection of Children) Act, 2000, stipulates that any person aged between 16 and 18 years and accused of a heinous offence — defined as a crime for which there is a sentence of seven years or more under the Indian Penal Code — may be tried under the IPC and not the JJ Act if, after a preliminary inquiry, the Juvenile Justice Board feels that the crime was committed with full knowledge and understanding of the consequences.

Passed by the Rajya Sabha amid clamour over the release of the juvenile convicted in the 2012 Delhi gangrape case, the 2015 Bill is likely to be challenged in a constitutional court, given the legal arguments against the proposed law, which is yet to get the President’s assent.

A judgment in July 2013 by a three-judge bench of the Supreme Court lends an objective idea of what can be legally as well as diplomatically challengeable about the NDA government’s latest move.

Let us begin with the point on diplomacy, which was noted by the top court when it dismissed a batch of eight petitions that wanted age of juvenility to be lowered to 16 for determining the criminal culpability of a delinquent.

According to Article 1 of the United Nations Convention on the Rights of the Child (UNCRC), 1989, “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”.

India is not only a signatory to UNCRC, but also ratified it on in December 1992, and as the apex court had noted, “the said Convention sowed the seeds of the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000, by the Indian Parliament”, fixing the age at 18. The erstwhile JJ Act of 1986 defined a ‘boy child’ as someone below 16 years of age and a ‘girl child’ as below 18, and the Supreme Court had noted that the JJ Act raising the cut-off age to 18 was “based on sound principles, recognised internationally and contained in the provisions of the Indian Constitution.”

Article 1 of the UNCRC does grant individual countries the discretion to determine by law the age at which childhood may cease but the ambiguity regarding the age of a ‘child’ under different statutes in India pose a serious legal challenge to the amendment in the JJ Act. For, Article 14 in the Constitution enshrines equality of persons before the law but the new juvenile law seeks to create a distinction between the equals as far as their age is concerned.

Moreover, it will be a law deviating from the fundamental principle of Article 15(3) to make special provisions “for” children and women. Similar illustrations can be found in Article 21A, which says the State shall provide free and compulsory education to all children within the ages of 6 and 14, Article 45 states the State shall… provide early childhood care and education for all children until they complete the age of 6, and Article 51(k) prescribes a duty that guardians provide opportunities for education to those between 6 and 14. These show the Constitution has mandated for provisions in the welfare of the children and a departure from this would render any law amenable to legal challenge.

Discarding the plea to treat children of 16-18 group as a separate class, the apex court in its judgment in July 2013 had underlined that a “knee-jerk reaction to situations… could set a dangerous trend and affect millions of children in need of care and protection” since “the age of 18 has been fixed on account of the understanding of experts in child psychology and behavioural patterns that till such an age the children in conflict with law could still be redeemed and restored to mainstream society…”

The SC bench, headed by then Chief Justice Altamas Kabir, had reminded everyone that the essence of the JJ Act and the rules framed thereunder is “restorative and not retributive”, providing for rehabilitation and re-integration of children in conflict with law.

It had also taken into account “exceptions” where a child in the age group of 16 to 18 may have developed criminal propensities, making it impossible for him or her to be re-integrated into mainstream society. It held: “Such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.”

The clutch of petitions had also sought prosecution of the juvenile convict in the 2012 Delhi gangrape case as an adult but the court said that although the incident was “gruesome”, such an incident, in comparison to the vast number of crimes occurring in India, makes it an “aberration rather than the rule.”

The court was clear that available data did not support the contention that crimes by those above 16 have gone up by a magnitude warranting a change in the law, an argument now being made by the government though such crimes have remained static at 1.2 per cent of total crimes over the last three years.

Therefore, whenever the new law lands for a judicial scrutiny before a constitutional court, the government will have to counter every argument it had made in 2013, including those relating to the statistics and its commitment to the constitutional principles and the international conventions. Lastly, it may also need to show the progress it made since 2013 in implementing a variety of benevolent laws for children because the apex court, while rejecting the plea to lower the age of juvenility, had said: “On the other hand, the implementation of the various enactments relating to children, would possibly yield better results.”