Dismissed

Association for Aiding Justice, through Ram Keswani v. Union of India, through Ministry of Home Affairs and Ors.

Bombay HC13 Jun 2014PIL/188/2013

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a PIL challenging the constitutional validity of definitions for juveniles and Sections 16 and 18 of the JJ Act. Relying on the Supreme Court in Salil Bali and Dr. Subramanian Swamy, the bench held the age of 18 is constitutionally permissible and the Act remains valid.

What did the court decide?

Public Interest Litigation dismissed; no relief granted to petitioner challenging statutory provisions.

Association for Aiding Justice, through Ram… — Child Sexual Offences (POCSO) | Bombay HC (2014)

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pil-188.13

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO.188 OF 2013

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Association for aiding Justice. .. Petitioner Vs Union of India and Others. .. Respondents

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None for the Petitioner. Shri Parag Vyas for Respondent No.1. Shri J.S. Deo, AGP for Respondent Nos.2 and 3.

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CORAM : A.S. OKA & A.S. CHANDURKAR, JJ DATED : 13TH JUNE 2014

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P.C.

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. None appears for the Petitioner. The Petitioner has

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challenged the validity of the Clauses (k) and (l) of Section 2 along with Sections 16 and 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000 ( for short “the said Act”).

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Our attention is invited to a decision of the Apex Court in the case of Salil Bali v. Union of India and Another [(2013)7 SCC 705]. The prayer in the matter before the Apex Court was for striking down the provisions of Clauses (k) and (l) of Section 2 of the said Act with a further prayer to direct the Union of India to take steps to make changes in the said Act to bring it in line with the United Nations Standard Minimum Rules for Administration of Juvenile Justice. In Paragraph 64, the Apex Court held thus:

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“64. This being the understanding of the Government behind the enactment of the Juvenile Justice (Care and Protection of Children ) Act, 2000, and the amendments effected thereto in 2006, together with Rules framed thereunder in 2007, and the data available with regard to the commission of heinous offences by the children, within the meaning of Sections 2(k) and 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000, we do not think that any interference is necessary with the provisions of the statute till such time as sufficient data is available to warrant any change in the provisions of the aforesaid Act and the Rules. On the other hand, the implementation of the various enactments relating to children, would possibly yield better results.”

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Thus, the Apex Court has upheld the validity of Clauses (k) and (l) of Section 2 of the said Act. The Clauses (k) and (l) of Section 2 of the said Act read thus:

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“(k) “juvenile” or “child” means a person who has not completed eighteenth year of age;

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(l) “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence.”

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When this Petition was listed before the Division bench of

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this Court, it was noted that the constitutional validity of Clauses (k) and (l) of Section 2 of the said Act and Sections 15 and 16 of the said Act has been upheld by the Apex Court in the case of Salil Bali (Supra). However, the attention of the Court was invited to the order dated 22^nd

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August 2013 passed by the Apex Court issuing notice in the Special Leave Petition (Criminal) No.1953 of 2013 (Dr. Subramanian Swamy and Others Vs. Raju Thr. Member Juvenile Justice Board and Another ).

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The learned counsel representing the Union of India has tendered across the bar a copy of the final judgment and order dated 28^th March 2014 in Criminal Appeal No.695 of 2014 arising out of Special Leave Petition (Criminal) No.1953 of 2013. It appears from the said decision that there was no prayer made for challenging the validity of the Clauses (k) and (l) of Section 2 of the said Act. What was contended was that the said two provisions will have to be read down. In Paragraph 41 of the said judgment, the Apex Court has noted the submission of the first Petitioner. The submission was that the Clauses (k) and (l) of Section 2 and Section 7 of the said Act must be read to mean that the juveniles (children below the age of 18 years) who are intellectually, emotionally and mentally mature enough to understand the implications of their acts and who have committed serious crimes do not come under the purview of the said Act and such juveniles are liable to be dealt with under penal law of the country and by the regular hierarchy of Courts. In Paragraph 43 of the said decision, the Apex Court ultimately held that it is not possible to read down the provisions as contended by the Petitioner. It will be necessary to make a reference to Paragraph 46 of the said decision which reads thus:

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“46. That in certain foreign jurisdictions, details of which have been mentioned earlier to bring about clarity and completeness to the issues arising, the position is otherwise would hardly be of any consequence so far as our country is concerned. Contrary international opinion, thinking or practice, even if assumed, does not dictate the legislation of a sovereign nation. If the legislature has adopted the age of 18 as the dividing line between juveniles and adults and such a decision is constitutionally permissible the enquiry by the Court must come to an end. Even otherwise there is a considerable body of world opinion that all under 18 persons ought to be treated as juveniles and separate treatment ought to be meted out to them so far as offences committed by such persons are concerned. The avowed object is to ensure their rehabilitation in society and to enable the young offenders to become useful members of the society in later years. India has accepted the above position and legislative wisdom has led to the enactment of the JJ Act in its present form. If the Act has treated all under 18 as a separate category for the purposes of differential treatment so far as the commission of offences are concerned, we do not see how the contentions advanced by the petitioners to the contrary on the strength of the thinking and practices in other jurisdiction can have any relevance.”

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6. In Paragraph 47, the Apex Court has held thus:

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“47. In the earlier paragraphs of this report we have analyzed in detail the difference between the criminal justice system and the system for dealing with offenders under the JJ Act. The Act does not do away or obliterate the enforcement of the law insofar as juvenile offenders are concerned. The same penal law i.e. Indian Penal Code apply to all juveniles. The only difference is that a different scheme for trial and punishment is introduced by the Act in place of the regular provisions under the Code of Criminal Procedure for trial of offenders and the punishments under the Indian Penal Code. The above situation is vastly different from what was before the Court in

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Mithu (supra) and also in Dadu (supra). In Mithu (supra) a separate treatment of the accused found guilty of a second incident of murder during the currency of the sentence for an earlier offence of murder was held to be impermissible under Article 14. Besides the absence of any judicial discretion, whatsoever, in the matter of imposition of sentence for a second Act of murder was held to be “out of tune” with the constitutional philosophy of a fair, just and reasonable law. On the other hand in Dadu (supra), Section 32A of the NDPS Act which had ousted the jurisdiction of the Court to suspend a sentence awarded under the Act was read down to mean that the power of suspension, notwithstanding Section 32A of the NDPS Act, can still be exercised by the appellate Court but subject to the conditions stipulated in Section 37 namely (I) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. Nothing as sweeping and as drastic in Mithu (supra) and Dadu (supra) has been introduced by the provisions of the Act so as to enable us to share the view expressed by Dr.Hingorani that the Act sets at naught all the essential features of the criminal justice system and introduces a scheme which is abhorrent to our constitutional values. Having taken the above view, we do not consider it necessary to enter in the consequential arena, namely, the applicability of the provisions of Article 20(3) of the Constitution and Section 300 of the Code of Criminal Procedure to the facts of the present case as on the view that we have taken no question of sending the juvenile-Raju to face a regular trial can and does arise.”

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In Paragraph 48, the Apex Court noted that the elaborate statistics produced before it shows that the serious crimes have been committed by the juveniles and there is increase in the rate of such crimes. The Apex Court observed that it is for the legislature to

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consider the said aspects. Ultimately, the Apex Court proceeded to dismiss the Appeal and the Petition before it. Thus, the law laid down by the Apex Court in its earlier decision in the case of Dr. Subramanian Swamy (supra) was not disturbed. Not only that the law laid down in the case of Salil Bali is not disturbed, but also the Apex Court has declined to read down the provisions of the Clauses (k) and (l) of Section 2 of the said Act. Thus, the challenge to the constitutional validity of the Clauses (k) and (l) of Section 2 of the said Act has been already concluded by the Apex Court against the Petitioner.

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In addition, in the present Petition, there is a challenge to the validity of Sections 16 and 18 of the said Act which read thus:

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“16. Order that may not be passed against juvenile.(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death [or imprisonment for any term which may extend to imprisonment for live], or committed to prison in default of payment of fine or in default of furnishing security:

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Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government.

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(2) On receipt of a report from a Board under subsection (1), the State Government may make such

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arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit:

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[Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under section 15 of this Act.]

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No joint proceeding of juvenile and person not a juvenile. - (1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile.

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(2) If a juvenile is accused of an offence for which under section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person.”

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Essentially the challenge to the said Sections 16 and 18 is based on the challenge to Clauses (k) and (l) of Section 2 of the said Act which fixes the age for the juvenile is 18 years. Once the validity of Clauses (k) and (l) of Section 2 of the said Act fixing the age of the juvenile is upheld, it is obvious that no illegality can be attached to Section 16 of the said Act which provides that no juvenile in conflict with law shall be sentenced to death or imprisoned for any term which may extend to imprisonment for life or committed to prison in default of payment of fine or in default of furnishing security. Proviso to Sub-section (1) of Section 16 of the said Act makes a provision which deals with a juvenile who has attained the age of sixteen years and has committed an offence of serious nature.

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We have already made a reference to what is held by the Apex Court in Paragraphs 46 and 47 of its decision in the case of Dr. Subramanian Swamy (supra) . The Apex Court observed that the said Act does not do away or obliterate the enforcement of the law in so far as the juvenile offenders are concerned. It is held that the same penal law i.e. Indian Penal Code applies to all juveniles. The only difference is that a different scheme for trial and punishment is introduced by the said Act. Therefore, we find that there is no merit in the challenge to the validity of Section 16 of the said Act.

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As far as Section 18 of the said Act is concerned, all that it lays down is that notwithstanding the provisions of the Code of Criminal Procedure, 1973 or any other law or for the time being in force, no juvenile shall be charged with or shall be tried for any offence together with a person who is not a juvenile. As observed by the Apex Court, though the penal laws of the country apply to the juveniles with full force, a different scheme for trial and punishment is introduced by the said Act as far as the juveniles are concerned. Therefore, a provision is made under Section 18 of the said Act that no juvenile shall be charged with or tried for any offence together with any other person who is not a juvenile. Similarly, Sub-section (2) of Section 18 of the said Act provides that if such a juvenile and any person who is not a juvenile would, but for the prohibition contained in Sub-section (1) have been charged and tried together, the Juvenile Justice Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person. The obvious reason for enacting the said provision is that the regular Criminal Courts do not have jurisdiction to deal with the offences committed by a

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juvenile and it is the Juvenile Justice Board constituted under Section 4 of the said Act which has jurisdiction to deal with a juvenile in conflict with law. Therefore, no illegality or irregularity can be attached to Section 18 of the said Act. In view of the above discussion, no relief can be granted even in terms of the prayer clauses (b) and (c) especially in light of what is held by the Apex Court in the case of Dr. Subramanian Swamy (supra) .

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In view of the law laid down by the Apex Court, no relief can be granted in this Public Interest Litigation. Accordingly, the Public Interest Litigation is dismissed.

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(A.S. CHANDURKAR, J) ( A.S. OKA, J )

Association for Aiding Justice, through Ram Keswani v. Union of India, through Ministry of Home Affairs and Ors.

Case brief

What is this about?

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Association for Aiding Justice, through Ram Keswani v. Union of India, through Ministry of Home Affairs and Ors.

Case brief

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