07/08/2014
My opinion dated September 2013 for changing the Juvenile Justice Act:
PUNISHMENT TO JUVENILES INVOLVED IN SERIOUS AND EXCEPTIONAL CRIMES
The shocking incident of Delhi Gang-rape occurred on 16th December, 2013 is still fresh in my memory. One convict died during trial, 4 have been awarded Death Sentence by the Trial Court. There was also a juvenile involved in the said case, who is proved to have committed most heinous acts in the said Gang-rape. Most recently, the punishment awarded to the said Juvenile by the Juvenile Justice Board (JJB) under the Juvenile Justice (Care & Protection of Children) Act, 2000 and the Rules framed thereunder; really seems to be a dent to the existence of a civilized society, as the award of 3 years in Reform Home is not only inadequate but fails to serve the very purpose of existence of Law. I cannot also lose sight of the fact that in the absence of proper and rational law, the Board could not have exceeded the punishment to the juvenile involved in the Delhi Gang-rape.
Many of my friends felt the terror of the incident so deeply that they have gone through many sleepless nights. Many colleagues and friends expressed their uproar and uncertainty about the safety of their family members in India and have decided to leave the country for good. The environment seemed to be suddenly absolutely scary and risky to live for especially for the working females who have to step out of the house for the necessity of attending work at office. Adding fire to the fuel, the punishment awarded to the juvenile has been condemned mostly by all sections of the society. Though there is a meagre section of people who believe otherwise want no change in juvenile laws, but we should also not forget the fact that in a democracy, the government is always made by people who have majority.
I took my first step towards trying to make juvenile laws a better bet for such situations and for Indian Society, however, the same did not weigh well with the Supreme Court and my writ petition was dismissed on 17.07.2013 by the erstwhile Chief Justice of India (CJI). In my opinion, the then CJI should not have heard my writ due to reasons I have till date not disclosed on record, but reasons which are in public domain and I don’t want to elaborate on that at this juncture. I have filed Review Petition on 6.08.2013, which is yet to see the light of day and I am all ready with my strong punches to deal with the weakness contained in JJ Act.
With the development of civilization, not only deterrence and retribution, but crime prevention has also become one of the key factor for ascertaining punishment for criminals. I am of the opinion that the considerations of crime prevention, as others, would fall very well within the ambit and domain of Article 21 of Constitution of India. I am of the view that Criminal jurisprudence has mainly three fold objectives, namely, Deterrence, Retribution & Prevention and Article 21 of Constitution of India provides Right to Life to every one present in Indian Territory. Without fulfilling the objectives of Deterrence, Retribution & Prevention, the Right to Life cannot be enforced and sustained.
As a result of Delhi Gang-rape, there are debates going on in society for lowering the age of Juveniles from 18 years to 16 years for the purposes of JJ Act, for which I am of the opinion that that blanket change in age would do no good for the society. I would put forth my point of view concerning the required and essential changes in JJ Act. Another area that I will cover is w.r.t. Article 20 of the Constitution of India which prevents retrospective application of Criminal Laws.
India is a signatory and ratifying State to United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (in short the Beijing Rules, 1985) as well as United Nations Convention on the Rights of the Child, 1990 (UN Convention, 1990). While both these Rules and Convention guides to the fact that no child shall be subjected to capital punishment, or life imprisonment without possibility of release; the maximum detention period of 3 years provided in the JJ Act is not only arbitrary but irrational considering the fabric of Indian Society. Section 16 of the JJ Act limits the detention to a maximum period of 3 years even for serious/ very serious/ nerve-wrecking/ anti-national/ exceptional crimes; which is totally unreasonable and cannot stand the Constitutional Scrutiny of laws and Guard provided to the citizens by the Constitution of India. There is no basis, at all, for keeping the limit of 3 years; as both, the UN Convention and Beijing Rules, leave the domain open for the ratifying State to keep any period as per the social needs of a particular State. The Beijing Rules, 1985 and the UN Convention, 1990 do not provide such a limitation, at all. For this purpose, relevant part of Article 37 of the UN Convention, 1990 reads as under: -
“Article 37
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age.”
Further, Clause 17 of the Beijing Rules, 1985 reads as under :
“17. GUIDING PRINCIPLES IN ADJUDICATION AND DISPOSITION
17.1 The disposition of the competent authority shall be guided by the following principles:
(a) The reaction taken shall always be in proportion not only to 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 the society;
(b) ……
(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) ……
17.2 Capital punishment shall not be imposed for any crime committed by juveniles.”
Therefore, non-grant of capital punishment and life imprisonment are the only limitations provided by the Beijing Rules, 1985 and the UN Convention, 1990 and while awarding a punishment, the States parties are mandated to always punish in proportion not only to 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 the society.
In the circumstances, the Board could be allowed to pass appropriate sentences, as may serve the purpose of criminal law and society in a particular case; and which may not be capital punishment and /or life imprisonment. Therefore the limitation of 3 years provided in Section 16 of the JJ Act is totally unreasonable and unconstitutional. Before setting free a person i.e. either an adult or a juvenile, it is important to see as to what impact it may bring in the society. While even for a juvenile, who has committed an offence of very serious nature, the JJ Act provides for non-disclosure of identity; however, when such a juvenile attains the age of majority in detention, the identity of such adult should not be withheld; the public should know the identity of such person so that at appropriate times, they could save themselves from a potential threat that may be surrounding them. This way, there would not be an infringement of the UN Convention adopted and ratified by India.
I am of the view that criminal laws seek to achieve the objectives of Deterrence, Retribution and Prevention in any society, failing which the very objective of creating a law also fails. The idea is today’s laws should conform to today’s needs. While JJ Act and Rules framed thereunder (as amended till date) seek to bring justice to the conditions of children in our society, it misses some very important aspects to bring balance in society qua the rights of juveniles and other individuals of society, which are mainly protected by Article 21 of the Constitution of India and thereby causing the instances of infringement of the fundamental rights of a person guaranteed by Indian Constitution. At several places, JJ Act & Rules also fails to achieve the objectives of law, leave aside the objectives of criminal law. I am therefore of the opinion that such grey areas are required to be found and corrected. We may see that Article 40(1) of UN Convention, 1990 reads as under: -
“Article 40
1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedom of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and child’s assuming a constructive role in society.”
Relevant provisions of Clause 2.3 of the Beijing Rules, 1985 also read as under: -
“2.3 Efforts shall be made to establish, in each national jurisdiction, a set of laws, rules and provisions specifically applicable to juvenile offenders and institutions and bodies entrusted with the functions of the administration of juvenile justice and designed:
(a) To meet the varying needs of juvenile offenders, while protecting their basic rights;
(b) To meet the needs of society;
(c) ………
Commentary:
………
………
Rule 2.3 is addressed to necessity of specific national legislation for the optimal implementation of these Standard Minimum Rules, both legally and practically.”
It can be seen that Article 40(1) of UN Convention, 1990 clearly provides that a juvenile offender should be treated in a manner which reinforces the juvenile’s respect for the human rights and fundamental freedom of others. Further Clause 2.3(a) & (b) of Beijing Rules, 1985 also clearly lay down that while the juvenile laws should be made to meet the varying needs of juvenile offenders; it also mandates that the laws should be such, so that they meet the needs of society. At present, named provisions of i.e. Section 16 of JJ Act & Rules do not completely meet the needs of society and also fail to treat the juvenile offender involved in serious/rare crimes in a manner which could reinforce the juvenile’s respect for the human rights and fundamental freedom of others. For meeting the above objectives, many countries in the world, which have signed and ratified the UN Convention, 1990, have passed suitable laws balancing the rights of juveniles and the needs of society. One example is, United Kingdom, which has signed and ratified the UN Convention, 1990, has introduced and passed a legislation namely Criminal Justice Act, 2003 which contains a term namely ‘Dangerous Offenders’. The Act replaced the previous law on the mandatory sentencing of defendants convicted of violent or sexual crimes, introducing compulsory life sentences or minimum sentences for over 150 offences (subject to the defendant meeting certain criteria). The Act created a new kind of life sentence, called "imprisonment for public protection" (or "detention for public protection" for those aged under 18), which may even be imposed for offences which would otherwise carry a maximum sentence of ten years. Section 226 of the Criminal Justice Act, 2003 reads as under: -
“226. Detention for life or detention for public protection for serious offences committed by those under 18
(1)This section applies where—
(a) a person aged under 18 is convicted of a serious offence committed after the commencement of this section, and
(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.
(2)If—
(a) the offence is one in respect of which the offender would apart from this section be liable to a sentence of detention for life under section 91 of the Sentencing Act, and
(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of detention for life,
the court must impose a sentence of detention for life under that section.
(3) In a case not falling within subsection (2), the court may impose a sentence of detention for public protection if the notional minimum term is at least two years.
(3A) The notional minimum term is the part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of detention for public protection but was required to disregard the matter mentioned in section 82A(3)(b) of that Act (crediting periods of remand).]
(4) A sentence of detention for public protection is a sentence of detention for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c. 43) as to the release of prisoners and duration of licences.
(5)An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.”
Further, Section 228 & 229 of the Criminal Justice Act, 2003 reads as under: -
“228Extended sentence for certain violent or sexual offences: persons under 18
(1)This section applies where—
(a)a person aged under 18 is convicted of a specified offence committed after the commencement of this section, and
(b)the court considers—
(i)that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, and
(ii)where the specified offence is a serious offence, that the case is not one in which the court is required by section 226(2) to impose a sentence of detention for life under section 91 of the Sentencing Act.
(2)The court may impose on the offender an extended sentence of detention, if the condition in subsection (2A) is met.
(2A)The condition in this subsection is that, if the court were to impose an extended sentence of detention, the term that it would specify as the appropriate custodial term would be at least 4 years.
(2B)An extended sentence of detention is a sentence of detention the term of which is equal to the aggregate of—
(a)the appropriate custodial term, and
(b)a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences.]
(3)In subsections (2A) and (2B)]“the appropriate custodial term” means such term as the court considers appropriate, which—
(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)must not exceed the maximum term of imprisonment permitted for the offence.
(4)The extension period must not exceed—
(a)five years in the case of a specified violent offence, and
(b)eight years in the case of a specified sexual offence.
(5)The term of an extended sentence of detention passed under this section in respect of an offence must not exceed the maximum term of imprisonment permitted for the offence.
(6)Any reference in this section to the maximum term of imprisonment permitted for an offence is a reference to the maximum term of imprisonment that is, apart from section 225, permitted for the offence in the case of a person aged 18 or over.
(7)The Secretary of State may by order amend subsection (2A) so as to substitute a different period for the period for the time being specified in that subsection.”
AND
“229. The assessment of dangerousness
(1)This section applies where—
(a)a person has been convicted of a specified offence, and
(b)it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences.
(2)the court in making the assessment referred to in subsection (1)(b)—
(a)must take into account all such information as is available to it about the nature and circumstances of the offence,
(aa)may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,
(b)may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (aa) forms part, and
(c)may take into account any information about the offender which is before it.
(2A)The reference in subsection (2)(aa) to a conviction by a court includes a reference to—
(a)a conviction of an offence in any service disciplinary proceedings, and]
(b)a conviction of a service offence within the meaning of the Armed Forces Act 2006 (“conviction” here including anything that under section 376(1) and (2) of that Act is to be treated as a conviction).
(2B)For the purposes of subsection (2A)(a) “service disciplinary proceedings” means—
(a)any proceedings under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 (whether before a court-martial or any other court or person authorised under any of those Acts to award a punishment in respect of any offence), and
(b)any proceedings before a Standing Civilian Court;
and “conviction” includes the recording of a finding that a charge in respect of the offence has been proved.”
Further, Section 236 of the Criminal Justice Act, 2003 reads as under: -
“236. Conversion of sentences of detention into sentences of imprisonment
For section 99 of the Sentencing Act (conversion of sentence of detention and custody into sentence of imprisonment) there is substituted—
“Conversion of sentence of detention to sentence of imprisonment
99. Conversion of sentence of detention to sentence of imprisonment
(1)Subject to the following provisions of this section, where an offender has been sentenced by a relevant sentence of detention to a term of detention and either—
(a)he has attained the age of 21, or
(b)he has attained the age of 18 and has been reported to the Secretary of State by the board of visitors of the institution in which he is detained as exercising a bad influence on the other inmates of the institution or as behaving in a disruptive manner to the detriment of those inmates,
the Secretary of State may direct that he shall be treated as if he had been sentenced to imprisonment for the same term.
(2)Where the Secretary of State gives a direction under subsection (1) above in relation to an offender, the portion of the term of detention imposed under the relevant sentence of detention which he has already served shall be deemed to have been a portion of a term of imprisonment.
(3)Where the Secretary of State gives a direction under subsection (1) above in relation to an offender serving a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 the offender shall be treated as if he had been sentenced under section 225 of that Act; and where the Secretary of State gives such a direction in relation to an offender serving an extended sentence of detention under section 228 of that Act the offender shall be treated as if he had been sentenced under section 227 of that Act.
(4)Rules under section 47 of the Prison Act 1952 may provide that any award for an offence against discipline made in respect of an offender serving a relevant sentence of detention shall continue to have effect after a direction under subsection (1) has been given in relation to him.
(5)In this section “relevant sentence of detention” means—
(a)a sentence of detention under section 90 or 91 above,
(b)a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003, or
(c)an extended sentence of detention under section 228 of that Act.”
Therefore, it’s the Gravity of Crime that is considered worldwide (mainly in the most civilized nations like UK, Canada, Denmark, US etc.) even in the cases of persons aged below 18 years. Further after 18 years, in appropriate cases, there are provisions to convert detention to imprisonment. Section 226, 228, 229 & 236 of Criminal Justice Act, 2003 (UK) really show the pragmatic approach of a civilized society. It is submitted that while, regarding the ordinary crimes, the JJ Act can be fully implemented and the age of 18 years should be left untouched, the Parliament may take itself to the task to provide for suitable mechanism thereby balancing the needs of society, security of individual & women and the rights of a child.
Dealing with other aspect, I would like to say if the provisions of substantive statutory law were based on fundamental principles of public policy, Supreme Court can take into account such prohibitions while assessing the complete justice of a cause or a matter, but that otherwise, prohibitions and limitations contained in ordinary laws cannot ipso facto act as prohibitions or limitations on the Constitutional powers of Supreme Court under Article 142 of the Constitution of India. In the case in hand i.e. Delhi Gang-rape case, the provisions of JJ Act which entail the release of the Juvenile in hand with a maximum of 3 years’ detention in Reform Home; cannot be said to be based on fundamental principle of public policy and therefore the same can very well be declared as null and void by the Supreme Court. In my opinion, this is a fit case for Supreme Court to exercise its power under Article 32 read with Article 142 of the Constitution of India. I would like to add that Supreme Court of India has unfettered power to do complete justice by virtue of Article 142 of the Constitution of India. Though Article 20(1) may create a bar in granting a punishment, to the juvenile, which is more than the punishment prescribed by law at the time of commissioning of offence; but Article 20(1) also rotates in the domain of individuals and is limited to convicts of crime. However, Article 21 protects and gives right to life to all the persons present in the territory of India, including citizens of India, and which also includes the beneficiaries of Article 20(1). Therefore, Article 21 has a much bigger presence and is a necessary positive right. If at all, a conflict may arise between the powers under Article 20(1) and Article 21 of the Constitution, the supremacy would be of Article 21, as this right is equivalent to oxygen for citizens of India and others present in India. Therefore to preserve the rights of Individuals under Article 21 of the Constitution, Supreme Court may surely issue directions under Article 142 of the Constitution, which, though, may seem to be in conflict with the mandate of Article 20(1), but are based on fundamental principle of public policy and are necessary and inevitable to preserve the right to life under the Article 21 of Constitution of India. Applying the above proposition, the juvenile involved in Delhi Gang-rape case can very well be punished in a manner different from what we have already seen.
(Vivek Narayan Sharma)
Advocate-on-record
Supreme Court
21.09.2013
NEW DELHI
