Defend juvenile law provisions: SC tells Centre

Asking if the nature of a crime should be taken into account before granting immunity to juveniles from criminal prosecution, the Supreme Court Monday asked the Centre to defend the "constitutional validity" of the provision in the Juvenile Justice Act that treats a person as minor till 18.

Seeking a comprehensive response from the Centre, a Bench of Justices K S Radhakrishnan and Dipak Misra said that the court would deal with the validity of the law on the "judicial side" and hence recommendations by the government-mandated Verma Committee could not provide the answers to the questions raised in a PIL.

The petitioner asked the court to declare certain provisions of the Act in violation of fundamental rights under Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution. It also sought that certain provisions be held unconstitutional, pointing out that the definition of "juvenile in conflict with law" accords absolute immunity to delinquents up to the age of 18 years from being prosecuted like adults despite the gravity of their crimes.

"Should the fixation of age as 18 years have some nexus with the crime? The question that this petition raises is that the gravity of crime must have some connection with the determination of age and its benefits," said the court, addressing Attorney General G E Vahanvati. The AG had been requested by the Bench on Friday to appear before it and communicate the Centre's stand.

The AG began by saying that the issue of age and culpability of juveniles had been gone into extensively by the Verma report. "That could be... but we want to deal with it on the judicial side," responded the Bench.

Vahanvati then pointed out that law and order was a state subject and also that several NGOs had raised this issue after the Delhi gangrape case. The court however reminded the AG that the Juvenile Justice Act was a central government law.

"This is your law. The states have no role and we are not going to hear the NGOs. We are on the constitutional validity of these provisions in question. This is your law and they will have to be tested on the anvils of Articles 14 and 21," it said.

Agreeing that the matter required some consideration, Vahanvati referred to the juvenile offender in the gangrape case, saying: "The question is why he (juvenile) has done what he has done. Has the society failed him or there are other reasons? This will also be significant. Moreover, if anybody says that it (the juvenile age) should be reduced to 16 years, there will be other factors that would work against even this age limit. There will be different views," he added.

At this, the court made it clear that its scrutiny was not because of the facts in any particular case but that it wished to examine the point of law since India was also a signatory to several international conventions that held different views on the subject. It then asked the AG to file a detailed counter-affidavit to the petition by March 30 and listed the matter for further hearing on April 3.

Meanwhile, advocates Sukumar and Kamal Kumar Pandey, petitioners in the case, submitted before the Bench that the benefits of age for juvenile offenders was completely "arbitrary and irrational" under the Act. The lawyers cited provisions under the Indian Penal Code of 1860 which offered some discretion to judges in determining criminal liability of children.

The petition had contended that Sections 82 and 83 of the IPC represented a much better classification of children since these provisions took into account not just their age but also the nature of offences committed by them. "Children up to the age of seven years are totally exempted from any criminal liability and for older children, there is a judicial discretion to judge as to the maturity level of the child in respect to the offence committed," it stated.

The plea complained that the effect of the IPC provisions was negated by the Juvenile Justice Act and offenders up to the age of 18 were treated like those under seven years by the IPC.

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