Submitted by basma on
INDIA
Title:
Dr Subramanian Swamy & Ors v. Raju Thr. Member Juvenile Justice Board & Anr
Court:
Supreme Court of India
Date:
28 March 2014
CRC Provisions:
Article 1: Definition of a child
Article 37: Torture and deprivation of liberty
Article 43: Implementation and entry into force
Article 44: Implementation and entry into force
Article 45: Implementation and entry into force
Other International Provisions:
UN Standard Minimum Rules for the Administration of Juvenile Justice (1985) (“Beijing Rules”), Rules 4.1, 17.1, 17.2
UN Rules for the Protection of Juveniles Deprived of their Liberty (1990) (“Havana Rules”), Rules 1.2, 11(a)
Domestic Provisions:
Constitution of India
Juvenile Justice Act, 2000, Sections 1(4), 2(k), 2(l), 2(p), 7, 28
Case Summary:
Background:
A young woman was sexually and physically assaulted by five persons, and later died from her injuries. One of the five persons arrested in connection with the crime was below 18 years of age on the date of the commission of the crime. In compliance with the Juvenile Justice Act, 2000 ("Juvenile Justice Act" or "Act"), his case was referred to the Juvenile Justice Board. Various petitioners argued that the juvenile should be tried as an adult in a regular criminal court.
Issue and resolution:
Juvenile justice; maximum age at which a child can be tried as a juvenile rather than as an adult. The Court dismissed the challenges to the Juvenile Justice Act and upheld the requirement under the Act that all persons under 18 years of age are to be treated as juveniles subject to the Act.
Court reasoning:
The meaning of the Juvenile Justice Act is plain and unambiguous and the legislative intent is clear that all persons below the age of 18 are put in one class/group by the Act to provide a separate scheme of investigation, trial and punishment for offences they commit. This is being done to further and effectuate the views of the international community which India has shared by being a signatory to the referenced conventions and treaties. The Constitution does not forbid such categorisation where the broad features of the class are identifiable and distinguishable and the categorisation made is reasonably connected with the object targeted. Contrary international opinion or practice does not dictate the legislation of a sovereign nation and, indeed, the Court finds a considerable body of world opinion that all persons under 18 should be treated as juveniles subject to separate treatment for committed offences. The object is to ensure their rehabilitation and to enable young offenders to become useful members of society in later years.
Excerpts citing CRC and other relevant human rights instruments:
23. The stage is now appropriate to have a look at the international conventions, holding the field, to which India has been a signatory.
The UN Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”) were adopted by the General Assembly of the United Nations in 1985. Rule 2.2(a) defines a juvenile as a child or young person who, under the respective legal system, may be dealt with for an offence differently than an adult. Rule 4.1 set out below mandates Member States to refrain from fixing a minimum age of criminal responsibility that is too low, bearing in mind the facts of emotional, mental and intellectual maturity.
“4.1 In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.”
24. The Beijing Rules take into account penological objectives in addition to rehabilitation of the offender. InRule 17.1, the guiding principles of adjudicating matters involving juveniles are enlisted:
(a) The reaction shall always be proportional to not only the circumstances and the gravity of the offence, but also to the circumstances and needs of the juvenile as well as to the needs of society;
(b) Restrictions on personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;
(c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response;
(d) The well-being of the juvenile shall be the guiding factor while considering his case.
25. The Convention on the Rights of the Child, 1990 (“CRC”), in Article 1, adopts a chronological definition of a “child”, viz. less than 18 years old, unless majority under national legislation is attained earlier:
“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”
Article 37(a) of the CRC prohibits the imposition of capital punishment and life imprisonment without possibility of release on offenders below 18 years of age. The CRC further obliges State Parties to establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law (Article 40(3)(a)).
26. Rule 1.2 of the Havana Rules provide that a juvenile should be deprived of his/her liberty only as a measure of the last resort limited to exceptional cases and for the minimum necessary period. Even then, detention should be in such a manner and in conditions that respect the human rights of juveniles (Rule 12).
Rule 11(a) of the Havana Rules, 1990 define a juvenile as every person under the age of 18, and allow national laws to determine a minimum age below which such person will not be detained.
27. Under Article 43 of the CRC, constitution of a Committee for the purpose of examining the progress made by the State parties on the rights of the child is contemplated. The first meeting of the Committee under Article 44 was to be within 2 years of the coming into force of the convention so far as a particular State party, in respect of whom review of the progress is made, is concerned. Thereafter, the Committee is required to meet every 5 years. In January, 2000, the Committee considered the initial report of India submitted on 19.03.1997 and adopted certain “concluding observations” the relevant part of which are extracted hereinbelow:
“79. The Committee is concerned over the administration of juvenile justice in India and its incompatibility with articles 37, 40 and 39 of the Convention and other relevant international standards. The Committee is also concerned at the very young age of criminal responsibility – 7 years – and the possibility of trying boys between 16 and 18 years of age as adults. Noting that the death penalty is de facto not applied to persons under 18, the Committee is very concerned that de jure, this possibility exists. The Committee is further concerned at the overcrowded and unsanitary conditions of detention of children, including detention with adults; lack of application and enforcement of existing juvenile justice legislation; lack of training for professionals, including the judiciary, lawyers and law enforcement officers, in relation to the Convention, other existing international standards and the 1986 Juvenile Justice Act; and the lack of measures and enforcement thereof to prosecute officials who violate these provisions.
80. The Committee recommends that the State party review its laws in the administration of juvenile justice to ensure that they are in accordance with the Convention, especially Articles 37, 40 and 39, and other relevant international standards such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the Vienna Guidelines for Action on Children in the Criminal Justice System.
81. The Committee recommends that the State party abolish by law the imposition of the death penalty on persons under 18. The Committee also recommends that the State party consider raising the age of criminal responsibility and ensure that persons under 18 years are not tried as adults. In accordance with the principle of non- discrimination contained in article 2 of the Convention, the Committee recommends article 29(h) of the 1986 Juvenile Justice Act be amended to ensure that boys under 18 years are covered by the definition of juvenile, as girls already are. The Committee recommends that the 1986 Juvenile Justice Act be fully enforced and that the judiciary and lawyers be trained and made aware of it. The Committee further recommends that measures be taken to reduce overcrowding, to release those who cannot be given a speedy trial and to improve prison facilities as quickly as possible. The Committee recommends that the State party ensure regular, frequent and independent monitoring of institutions for juvenile offenders.”
It is pursuant to the aforesaid concluding observations of the Committee made in the year 2000 that the JJ Act was amended in the later part of that year by having a uniform age of 18 for both male and female juveniles.
28. It needs to be clarified that the concluding observations of the Committee under Article 45 of the UN Convention (CRC) are qua a particular State party whereas general comments of the Committee under the same Article are authoritative interpretations addressed to all State parties. The above distinction between “concluding observations” and “general comments” is highlighted to draw attention to the fact that in the meeting of the Committee held in Geneva in the year 2007 certain general observations with regard to MCAR of 18 years were made which would be applicable to State parties other than India as the law had already been amended in our country pursuant to the concluding observations made by the Committee in the year 2000 specifically qua India. The views of the Committee in respect of other member States may be usefully taken note at this stage by extracting the recommendations in the nature of general comments in paras 36, 37 and 38 of the Report:
“36. The Committee also wishes to draw the attention of States parties to the upper age-limit for the application of the rules of juvenile justice. These special rules - in terms both of special procedural rules and of rules for diversion and special measures - should apply, starting at the MACR set in the country, for all children who, at the time of their alleged commission of an offence (or act punishable under the criminal law), have not yet reached the age of 18 years.
“37. The Committee wishes to remind States parties that they have recognized the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in accordance with the provisions of article 40 of CRC. This means that every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice.
“38. The Committee, therefore, recommends that those States parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years. The Committee notes with appreciation that some States parties allow for the application of the rules and regulations of juvenile justice to persons aged 18 and older, usually till the age of 21, either as a general rule or by way of exception.” (emphasis added)
...
39. Having laid bare all that is necessary for a purposive adjudication of the issues that have been raised by the rival camps we may now proceed to examine the same.
The Act, as manifestly clear from the Statement of Objects and Reasons, has been enacted to give full and complete effect to the country’s international obligations arising from India being a signatory to the three separate conventions delineated hereinbefore, namely, the Beijing Rules, the UN Convention and the Havana Rules. Notwithstanding the avowed object of the Act and other such enactments to further the country’s international commitments, all of such laws must necessarily have to conform to the requirements of a valid legislation judged in the context of the relevant constitutional provisions and the judicial verdicts rendered from time to time. Also, that the Act is a beneficial piece of legislation and must therefore receive its due interpretation as a legislation belonging to the said category has been laid down by a Constitution Bench of this Court in Pratap Singh vs. State of Jharkhand and Another. In other words, the Act must be interpreted and understood to advance the cause of the legislation and to confer the benefits of the provisions thereof to the category of persons for whom the legislation has been made.
...
43. In the present case there is no difficulty in understanding the clear and unambiguous meaning of the different provisions of the Act. There is no ambiguity, muchless 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 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.
...
45. If the provisions of the Act clearly indicate the legislative intent in the light of the country’s international commitments and the same is in conformity with the constitutional requirements, it is not necessary for the Court to understand the legislation in any other manner. In fact, if the Act is plainly read and understood, which we must do, the resultant effect thereof is wholly consistent with Article 14. The Act, therefore, need not be read down, as suggested, to save it from the vice of unconstitutionality for such unconstitutionality does not exist.
Follow Up:
The Juvenile Court sentenced the juvenile to three years at a reformatory home.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. The Preamble recognises the need to extend particular care to the child. In particular, it cites the Declaration of the Rights of the Child, which provides that "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection”, as well as the Beijing Rules relating to the administration of juvenile justice. Article 1 defines a child as a human being below the age of 18 years unless national laws recognise the age of majority earlier. Article 3 provides that in all actions concerning children, including in the context of the administration of juvenile justice, the best interests of the child shall be a primary consideration. Their differences in physical and psychological development compared with adults constitute the basis for the lesser culpability of children in conflict with the law and a separate juvenile justice system (Committee on the Rights of the Child, General Comment No. 10).
Citation:
SLP (Crl.) No.1953 of 2013
Link to Full Judgment:
https://indiankanoon.org/doc/134314390/
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
