INDIA

Title:
Salil Bali v. Union Of India & Another

Court:
Supreme Court of India

Date:
17 July 2013

CRC Provisions:
Article 1: Definition of a child

Other International Provisions:
Geneva Declaration of the Rights of the Child 1924
Universal Declaration of Human Rights
UN Declaration on the Rights of the Child 1959
UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) 1985
UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines) 1990
UN Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules) 1990

Domestic Provisions:
Juvenile Justice (Care and Protection of Children) Act 2000
Juvenile Justice (Care and Protection of Children) Rules 2007
Constitution of India

Case Summary:
Background:
This case concerned eight petitions jointly considered by the Supreme Court regarding the juvenile justice laws in India. The petitions requested, among other things, that the Court:
- amend the Juvenile Justice Act to lower the juvenile age from 18 to 16; and
- amend the Juvenile Justice Act to allow juveniles who have allegedly committed crimes such as rape and murder to be tried and punished under the laws applicable to adults.

Issue and resolution:
Upper age limit for children in conflict with the law; treatment of children as adults in the criminal justice system. The Supreme Court rejected the petitions.

Court reasoning:
The Court found that the Juvenile Justice Act and the Juvenile Justice (Care and Protection of Children) Rules are based on sound principles contained in the provisions of the Indian Constitution and the various declarations and conventions adopted by the international community. The Constitution guarantees several rights to children, and enables the state governments to make special provisions for children. Several international instruments also recognise the special vulnerability of children. In particular, the Beijing Rules, Riyadh Guidelines and Havana Rules provide that a separate criminal justice system should apply to children in conflict with the law which allow for their reintegration into society.

Article 1 of the Convention of the Rights of the Child, to which India is a party, provided the basis of 18 years as the upper age limit for children under the Juvenile Justice Act. This upper age limit of 18 is supported by scientific data indicating that the brain continues to develop and the growth of a child continues till he reaches at least the age of 18. It is also supported by the understanding of experts in child psychology that until such an age children in conflict with the law could still be rehabilitated and reintegrated into mainstream society, which aligns with the restorative purpose of the Juvenile Justice Act and its Rules.

For these reasons the Court stated that, in the absence of proper data, it was unwilling to deviate from the provisions of the Juvenile Justice Act and its Rules, which represent the collective wisdom of Parliament.

Excerpts citing CRC and other relevant human rights instruments:
41. It cannot be questioned that children are amongst the most vulnerable sections in any society. They represent almost one-third of the world’s population, and unless they are provided with proper opportunities, the opportunity of making them grow into responsible citizens of tomorrow will slip out of the hands of the present generation. International community has been alive to the problem for a long time. After the aftermath of the First World War, the League of Nations issued the Geneva Declaration of the Rights of the Child in 1924. Following the gross abuse and violence of human rights during the Second World War, which caused the death of millions of people, including children, the United Nations had been formed in 1945 and on 10th December, 1948 adopted and proclaimed the Universal Declaration of Human Rights. While Articles 1 and 7 of the Declaration proclaimed that all human beings are born free and equal in dignity and rights and are equal before the law, Article 25 of the Declaration specifically provides that motherhood and childhood would be entitled to special care and assistance. The growing consciousness of the world community was further evidenced by the Declaration of the Rights of the Child, which came to be proclaimed by the United Nations on 20th November, 1959, in the best interests of the child. This was followed by the Beijing Rules of 1985, the Riyadh Guidelines of 1990, which specially provided guidelines for the prevention of juvenile delinquency, and the Havana Rules of 14th December, 1990. The said three sets of Rules intended that social policies should be evolved and applied to prevent juvenile delinquency, to establish a Juvenile Justice System for juveniles in conflict with law, to safeguard fundamental rights and to establish methods for social re- integration of young people who had suffered incarceration in prison or other corrective institutions. One of the other principles which was sought to be reiterated and adopted was that a juvenile should be dealt with for an offence in a manner which is different from an adult. The Beijing Rules indicated that efforts should be made by member countries to establish within their own national jurisdiction, a set of laws and rules specially applicable to juvenile offenders. It was stated that the age of criminal responsibility in legal systems that recognize the concept of the age of criminal responsibility for juveniles should not be fixed at too low an age-level, keeping in mind the emotional, mental and intellectual maturity of children.

42. Four years after the adoption of the Beijing Rules, the United Nations adopted the Convention on the Rights of the Child vide the Resolution of the General Assembly No. 44/25 dated 20th November, 1989, which came into force on 2nd September, 1990. India is not only a signatory to the said Convention, but has also ratified the same on 11th December, 1992. The said Convention sowed the seeds of the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000, by the Indian Parliament.
...
44. The Juvenile Justice (Care and Protection of Children) Act, 2000, is in tune with the provisions of the Constitution and the various Declarations and Conventions adopted by the world community represented by the United Nations. The basis of fixing of the age till when a person could be treated as a child at eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000, was Article 1 of the Convention of the Rights of the Child… While generally treating eighteen to be the age till which a person could be treated to be a child, [the CRC] also indicates that the same was variable where national laws recognize the age of majority earlier. In this regard, one of the other considerations which weighed with the legislation in fixing the age of understanding at eighteen years is on account of the scientific data that indicates that the brain continues to develop and the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he can be held fully responsible for his actions. Along with physical growth, mental growth is equally important, in assessing the maturity of a person below the age of eighteen years…

Follow Up:
India's Supreme Court is currently hearing a petition filed by opposition politician and lawyer Subramanian Swamy that calls for a reinterpretation of the definition of “juvenile” under the Juvenile Justice Act. The petition asks for a child offender's "emotional, intellectual and mental maturity" instead of their age to be considered when deciding whether to try them as a juvenile.

Notes:
This decision was handed down amidst pressure in India for harsher punishments for juvenile offenders and a reduction in the upper age limit for juveniles from 18 to 16 following the “Delhi gangrape case”, in which a 23-year-old woman died following a gang-rape and attack by a group of males, including one 17-year-old boy, in December 2012. In August 2013, the Juvenile Justice Board sentenced the juvenile offender in this case to three years in a protective home - the maximum term available under the Act - a decision which the victim’s family has said it will appeal in a higher court. All four co-accused men were sentenced to death by a Delhi court in September 2013.

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:
Writ Petition (C) No. 10 of 2013

Link to Full Judgment:
http://online.wsj.com/public/resources/documents/SupremeCourt.pdf

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.

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