SALIL BALI Vs UNION OF INDIA
Bench: ALTAMAS KABIR,SURINDER SINGH NIJJAR,J. CHELAMESWAR
Case number: W.P.(C) No.-000010-000010 / 2013
Diary number: 425 / 2013
Advocates: PETITIONER-IN-PERSON Vs
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REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (C) NO. 10 OF 2013
SALIL BALI … PETITIONER VS.
UNION OF INDIA & ANR. … RESPONDENTS WITH
W.P.(C)NOS.14, 42, 85, 90 and 182 OF 2013 WITH
W.P.(CRL)NO.6 OF 2013 AND
T.C.(C)No. 82 OF 2013
J U D G M E N T
ALTAMAS KABIR, CJI. 1. Seven Writ Petitions and one Transferred Case
have been taken up together for consideration in
view of the commonality of the grounds and reliefs
prayed for therein. While in Writ Petition (C) No.
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14 of 2013, Saurabh Prakash Vs. Union of India, and
Writ Petition (C) No. 90 of 2013, Vinay K. Sharma
Vs. Union of India, a common prayer has been made
for declaration of the Juvenile Justice (Care and
Protection of Children) Act, 2000, as ultra vires
the Constitution, in Writ Petition (C) No. 10 of
2013, Salil Bali Vs. Union of India, Writ Petition
(C) No. 85 of 2013, Krishna Deo Prasad Vs. Union of
India, Writ Petition (C) No. 42 of 2013, Kamal
Kumar Pandey & Sukumar Vs. Union of India and Writ
Petition (C) No. 182 of 2013, Hema Sahu Vs. Union
of India, a common prayer has inter alia been made
to strike down the provisions of Section 2(k) and
(l) of the above Act, along with a prayer to bring
the said Act in conformity with the provisions of
the Constitution and to direct the Respondent No. 1
to take steps to make changes in the Juvenile
Justice (Care and Protection of Children) Act,
2000, to bring it in line with the United Nations
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Standard Minimum Rules for administration of
juvenile justice. In addition to the above, in
Writ Petition (Crl.) No. 6 of 2013, Shilpa Arora
Sharma Vs. Union of India, a prayer has inter alia
been made to appoint a panel of criminal
psychologists to determine through clinical methods
whether the juvenile is involved in the Delhi gang
rape on 16.12.2012. Yet, another relief which has
been prayed for in common during the oral
submissions made on behalf of the Petitioners was
that in offences like rape and murder, juveniles
should be tried under the normal law and not under
the aforesaid Act and protection granted to persons
up to the age of 18 years under the aforesaid Act
may be removed and that the investigating agency
should be permitted to keep the record of the
juvenile offenders to take preventive measures to
enable them to detect repeat offenders and to bring
them to justice. Furthermore, prayers have also
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been made in Writ Petition (Crl.) No. 6 of 2013 and
Writ Petition (C) No. 85 of 2013, which are
personal to the juvenile accused in the Delhi gang
rape case of 16.12.2012, not to release him and to
keep him in custody or any place of strict
detention, after he was found to be a mentally
abnormal psychic person and that proper and
detailed investigation be conducted by the CBI to
ascertain his correct age by examining his school
documents and other records and to further declare
that prohibition in Section 21 of the Juvenile
Justice (Care and Protection of Children) Act,
2000, be declared unconstitutional.
2. In most of the matters, the Writ Petitioners
appeared in-person, in support of their individual
cases.
3. Writ Petition (C) No.10 of 2013, filed by Shri
Salil Bali, was taken up as the first matter in the
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bunch. The Petitioner appearing in-person urged
that it was necessary for the provisions of Section
2(k), 2(l) and 15 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, to be
reconsidered in the light of the spurt in criminal
offences being committed by persons within the
range of 16 to 18 years, such as the gang rape of a
young woman inside a moving vehicle on 16th
December, 2012, wherein along with others, a
juvenile, who had attained the age of 17½ years,
was being tried separately under the provisions of
the Juvenile Justice (Care and Protection of
Children) Act, 2000.
4. Mr. Bali submitted that the age of
responsibility, as accepted in India, is different
from what has been accepted by other countries of
the world. But, Mr. Bali also pointed out that
even in the criminal jurisprudence prevalent in
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India, the age of responsibility of understanding
the consequences of one's actions had been
recognized as 12 years in the Indian Penal Code.
Referring to Section 82 of the Code, Mr. Bali
pointed out that the same provides that nothing is
an offence which is done by a child under seven
years of age. Mr. Bali also referred to Section 83
of the Code, which provides that nothing is an
offence which is done by a child above seven years
of age and under twelve, who has not attained
sufficient maturity of understanding to judge the
nature and consequences of his conduct on a
particular occasion. Mr. Bali, therefore, urged
that even under the Indian Criminal Jurisprudence
the age of understanding has been fixed at twelve
years, which according to him, was commensurate
with the thinking of other countries, such as the
United States of America, Great Britain and Canada.
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5. In regard to Canada, Mr. Bali referred to the
Youth Criminal Justice Act, 2003, as amended from
time to time, where the age of criminal
responsibility has been fixed at twelve years.
Referring to Section 13 of the Criminal Code of
Canada, Mr. Bali submitted that the same is in pari
materia with the provisions of Section 83 of the
Indian Penal Code. In fact, according to the
Criminal Justice Delivery System in Canada, a youth
between the age of 14 to 17 years may be tried and
sentenced as an adult in certain situations. Mr.
Bali also pointed out that even in Canada the Youth
Criminal Justice Act governs the application of
criminal and correctional law to those who are
twelve years old or older, but younger than 18 at
the time of committing the offence, and that,
although, trials were to take place in a Youth
Court, for certain offences and in certain
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circumstances, a youth may be awarded an adult
sentence.
6. Comparing the position in USA and the Juvenile
Justice and Delinquency Prevention Act, 1974, he
urged that while in several States, no set
standards have been provided, reliance is placed on
the common law age of seven in fixing the age of
criminal responsibility, the lowest being six years
in North Carolina. The general practice in the
United States of America, however, is that even for
such children, the courts are entitled to impose
life sentences in respect of certain types of
offences, but such life sentences without parole
were not permitted for those under the age of
eighteen years convicted of murder or offences
involving violent crimes and weapons violations.
7. In England and Wales, children accused of
crimes are generally tried under the Children and
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Young Persons Act, 1933, as amended by Section
16(1) of the Children and Young Persons Act, 1963.
Under the said laws, the minimum age of criminal
responsibility in England and Wales is ten years
and those below the said age are considered to be
doli incapax and, thus, incapable of having any
mens rea, which is similar to the provisions of
Sections 82 and 83 of Indian Penal Code.
8. Mr. Bali has also referred to the legal
circumstances prevailing in other parts of the
world wherein the age of criminal responsibility
has been fixed between ten to sixteen years. Mr.
Bali contended that there was a general worldwide
concern over the rising graph of criminal activity
of juveniles below the age of eighteen years, which
has been accepted worldwide to be the age limit
under which all persons were to be treated as
children. Mr. Bali sought to make a distinction in
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regard to the definition of children as such in
Sections 2(k) and 2(l) of the Juvenile Justice
(Care and Protection of Children) Act, 2000, and
the level of maturity of the child who is capable
of understanding the consequences of his actions.
He, accordingly, urged that the provisions of
Sections 15 and 16 of the Act needed to be
reconsidered and appropriate orders were required
to be passed in regard to the level of punishment
in respect of heinous offences committed by
children below the age of eighteen years, such as
murder, rape, dacoity, etc. Mr. Bali submitted
that allowing perpetrators of such crimes to get
off with a sentence of three years at the maximum,
was not justified and a correctional course was
required to be undertaken in that regard.
9. Mr. Saurabh Prakash, Petitioner in Writ
Petition (C) No. 14 of 2013, also appeared in-
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person and, while endorsing the submissions made by
Mr. Bali, went a step further in suggesting that in
view of the provisions of Sections 15 and 16 of the
Juvenile Justice (Care and Protection of Children)
Act, 2000, children, as defined in the above Act,
were not only taking advantage of the same, but
were also being used by criminals for their own
ends. The Petitioner reiterated Mr. Bali's
submission that after being awarded a maximum
sentence of three years, a juvenile convicted of
heinous offences, was almost likely to become a
monster in society and pose a great danger to
others, in view of his criminal propensities.
Although, in the prayers to the Writ Petition, one
of the reliefs prayed for was for quashing the
provisions of the entire Act, Mr. Saurabh Prakash
ultimately urged that some of the provisions
thereof were such as could be segregated and struck
down so as to preserve the Act as a whole. The
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Petitioner urged that, under Article 21 of the
Constitution, every citizen has a fundamental right
to live in dignity and peace, without being
subjected to violence by other members of society
and that by shielding juveniles, who were fully
capable of understanding the consequences of their
actions, from the sentences, as could be awarded
under the Indian Penal Code, as far as adults are
concerned, the State was creating a class of
citizens who were not only prone to criminal
activity, but in whose cases restoration or
rehabilitation was not possible. Mr. Saurabh
Prakash submitted that the provisions of Sections
15 and 16 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, violated the
rights guaranteed to a citizen under Article 21 of
the Constitution and were, therefore, liable to be
struck down.
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10. Mr. Saurabh Prakash also submitted that the
provisions of Section 19 of the Act, which provided
for removal of disqualification attaching to
conviction, were also illogical and were liable to
be struck down. It was submitted that in order to
prevent repeated offences by an individual, it was
necessary to maintain the records of the inquiry
conducted by the Juvenile Justice Board, in
relation to juveniles so that such records would
enable the authorities concerned to assess the
criminal propensity of an individual, which would
call for a different approach to be taken at the
time of inquiry. Mr. Saurabh Prakash urged this
Court to give a direction to the effect that the
Juvenile Justice Board or courts or other high
public authorities would have the discretion to
direct that in a particular case, the provisions of
the general law would apply to a juvenile and not
those of the Act.
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11. Mr. Vivek Narayan Sharma, learned Advocate,
appeared for the petitioner in Writ Petition (Crl.)
No. 6 of 2013, filed by one Shilpa Arora Sharma,
and submitted that the Juvenile Justice Board
should be vested with the discretion to impose
punishment beyond three years, as limited by
Section 15 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, in cases where a
child, having full knowledge of the consequences of
his/her actions, commits a heinous offence
punishable either with life imprisonment or death.
Mr. Sharma submitted that such a child did not
deserve to be treated as a child and be allowed to
re-mingle in society, particularly when the
identity of the child is to be kept a secret under
Sections 19 and 21 of the Juvenile Justice (Care
and Protection of Children) Act, 2000. Mr. Sharma
submitted that in many cases children between the
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ages of sixteen to eighteen years were, in fact,
being exploited by adults to commit heinous
offences who knew full well that the punishment
therefor would not exceed three years.
12. Mr. Sharma urged that without disturbing the
other beneficient provisions of the Juvenile
Justice (Care and Protection of Children) Act,
2000, some of the gray areas pointed out could be
addressed in such a manner as would make the
Juvenile Justice (Care and Protection of Children)
Act, 2000, more effective and prevent the misuse
thereof.
13. In Writ Petition (C) No. 85 of 2013, filed by
Krishna Deo Prasad, Dr. R.R. Kishor appeared for
the Petitioner and gave a detailed account of the
manner in which the Juvenile Justice Delivery
System had evolved. Referring to the doctrine of
doli incapax, rebuttable presumption and adult
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responsibility, Dr. Kishor contended that even
Article 1 of the UN Convention on the Rights of the
Child defines a child in the following terms:
“Article 1
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.”
14. Dr. Kishor contended that, as pointed out by
Mr. Salil Bali, the expression “child” has been
defined in various ways in different countries all
over the world. Accordingly, the definition of a
child in Section 2(k) of the Juvenile Justice (Care
and Protection of Children) Act, 2000, would depend
on the existing laws in India defining a child.
Dr. Kishor referred to the provisions of the Child
Labour (Prohibition and Regulation) Act, 1986, as
an example, to indicate that children up to the age
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of fourteen years were treated differently from
children between the ages of fourteen to eighteen,
for the purposes of employment in hazardous
industries. Dr. Kishor re-asserted the submissions
made by Mr. Bali and Mr. Saurabh Prakash, in regard
to heinous crimes committed by children below the
age of eighteen years, who were capable of
understanding the consequences of their acts.
15. Dr. Kishor also referred to the provisions of
Sections 82 and 83 of the Indian Penal Code, where
the age of responsibility and comprehension has
been fixed at twelve years and below. Learned
counsel submitted that having regard to the above-
mentioned provisions, it would have to be seriously
considered as to whether the definition of a child
in the Juvenile Justice (Care and Protection of
Children) Act, 2000, required reconsideration. He
urged that because a person under the age of 18
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years was considered to be a child, despite his or
her propensity to commit criminal offences, which
are of a heinous and even gruesome nature, such as
offences punishable under Sections 376, 307, 302,
392, 396, 397 and 398 IPC, the said provisions have
been misused and exploited by criminals and people
having their own scores to settle. Dr. Kishor
urged that the definition of a “juvenile” or a
“child” or a “juvenile in conflict with law”, in
Sections 2(k) and 2(l) of the Juvenile Justice
(Care and Protection of Children) Act, 2000, was
liable to be struck down and replaced with a more
meaningful definition, which would exclude such
juveniles.
16. Mr. Vikram Mahajan, learned Senior Advocate
appearing for the Petitioner, Vinay K. Sharma, in
Writ Petition (C) No. 90 of 2013, urged that the
right given to a citizen of India under Article 21
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of the Constitution is impinged upon by the
Juvenile Justice (Care and Protection of Children)
Act, 2000. Mr. Mahajan urged that the Juvenile
Justice (Care and Protection of Children) Act,
2000, operates in violation of Articles 14 and 21
of the Constitution and that Article 13(2), which
relates to post Constitution laws, prohibits the
State from making a law which either takes away
totally or abrogates in part a fundamental right.
Referring to the United Nations Declaration on the
Elimination of Violence against Women, adopted by
the General Assembly on 20th December, 1993, Mr.
Mahajan pointed out that Article 1 of the
Convention describes “violence against women” to
mean any act of gender-based violence that results
in, or is likely to result in, physical, sexual or
psychological harm or suffering to women.
Referring to the alleged gang rape of a 23 year old
para-medical student, in a moving bus, in Delhi, on
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16th December, 2012, Mr. Mahajan tried to indicate
that crimes committed by juveniles had reached
large and serious proportions and that there was a
need to amend the law to ensure that such persons
were not given the benefit of lenient punishment,
as contemplated under Section 15 of the Juvenile
Justice (Care and Protection of Children) Act,
2000. From the figures cited by him, he urged that
even going by statistics, 1% of the total number of
crimes committed in the country would amount to a
large number and the remedy to such a problem would
lie in the Probation of Offenders Act, 1958, which
made the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000, redundant
and ultra vires Article 21 of the Constitution.
17. Ms. Shweta Kapoor appeared in Transferred Case
No. 82 of 2013 in-person and questioned the vires
of Sections 16(1), 19(1), 49(2) and 52(2)(a) of the
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Juvenile Justice (Care and Protection of Children)
Act, 2000, and submitted that they were liable to
be declared as ultra vires the Constitution.
Referring to Section 16 of the aforesaid Act, Ms.
Kapoor submitted that even in the proviso to Sub-
section (1) of Section 16, Parliament had
recognized the distinction between a juvenile, who
had attained the age of sixteen years, but had
committed an offence which was so serious in nature
that it would not be in his interest or in the
interest of other juveniles in a special home, to
send him to such special home. Considering that
none of the other measures provided under the Act
was suitable or sufficient, the Government had
empowered the Board to pass an order for the
juvenile to be kept in such place of safety and in
such manner as it thought fit. Ms. Kapoor
submitted that no objection could be taken to the
said provision except for the fact that in the
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proviso to Section 16(2), it has been added that
the period of detention order would not exceed, in
any case, the maximum limit of punishment, as
provided under Section 15, which is three years.
18. Ms. Kapoor contended that while the provisions
of the Juvenile Justice (Care and Protection of
Children) Act, 2000, are generally meant for the
benefit of the juvenile offenders, a serious
attempt would have to be made to grade the nature
of offences to suit the reformation contemplated by
the Act.
19. As part of her submissions, Ms. Kapoor referred
to the decision of this Court in Avishek Goenka Vs.
Union of India [(2012) 5 SCC 321], wherein the
pasting of black films on glass panes were banned
by this Court on account of the fact that partially
opaque glass panes on vehicles acted as
facilitators of crime. Ms. Kapoor urged that in
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the opening paragraph of the judgment, it has been
observed that “Alarming rise in heinous crimes like
kidnapping, sexual assault on women and dacoity
have impinged upon the right to life and the right
to live in a safe environment which are within the
contours of Article 21 of the Constitution of
India”. Ms. Kapoor also referred to another
decision of this Court in Abuzar Hossain Vs. State
of West Bengal [(2012) 10 SCC 489], which dealt
with a different question regarding the provisions
of Section 7A of the Juvenile Justice (Care and
Protection of Children) Act, 2000, and the right of
an accused to raise the claim of juvenility at any
stage of the proceedings and even after the final
disposal of the case.
20. In conclusion, Ms. Kapoor reiterated her stand
that in certain cases the definition of a juvenile
in Sections 2(k) and 2(l) of the Juvenile Justice
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(Care and Protection of Children) Act, 2000, would
have to be considered differently.
21. The next matter which engaged our attention is
Writ Petition (Civil) No.90 of 2013 filed by one
Vinay Kumar Sharma, praying for a declaration that
the Juvenile Justice (Care and Protection of
Children) Act, 2000, be declared ultra vires the
Constitution and that children should also be tried
along with adults under the penal laws applicable
to adults.
22. Writ Petition (Civil) No.42 of 2013 has been
filed by Kamal Kumar Pandey and Sukumar, Advocates,
inter alia, for an appropriate writ or direction
declaring the provisions of Sections 2(1), 10 and
17 of the Juvenile Justice (Care and Protection of
Children) Act, 2000, to be irrational, arbitrary,
without reasonable nexus and thereby ultra vires
and unconstitutional, and for a Writ of Mandamus
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commanding the Ministry of Home Affairs and the
Ministry of Law and Justice, Government of India,
to take steps that the aforesaid Act operates in
conformity with the Constitution. In addition, a
prayer was made to declare the provisions of
Sections 15 and 19 of the above Act ultra vires the
Constitution.
23. The main thrust of the argument advanced by Mr.
Pandey, who appeared in person, was the inter-play
between International Conventions and Rules, such
as the Beijing Rules, 1985, the U.N. Convention on
the Rights of the Child, 1989, and the Juvenile
Justice (Care and Protection of Children) Act,
2000. While admitting the salubirous and
benevolent and progressive character of the
legislation in dealing with children in need of
care and protection and with children in conflict
with law, Mr. Pandey contended that a distinction
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was required to be made in respect of children with
a propensity to commit heinous crimes which were a
threat to a peaceful social order. Mr. Pandey
reiterated the submissions made earlier that it was
unconstitutional to place all juveniles,
irrespective of the gravity of the offences, in
one bracket. Urging that Section 2(l) of the
Juvenile Justice (Care and Protection of Children)
Act, 2000, ought not to have placed all children in
conflict with law within the same bracket, Mr.
Pandey submitted that the same is ultra vires
Article 21 of the Constitution. Referring to the
report of the National Crime Records Bureau (NCRB)
for the years 2001 to 2011, Mr. Pandey submitted
that between 2001 and 2011, the involvement of
juveniles in cognizable crimes was on the rise.
Mr. Pandey urged that it was a well-established
medical-psychological fact that the level of
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understanding of a 16 year-old was at par with that
of adults.
24. Mr. Pandey's next volley was directed towards
Section 19 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, which provides
for the removal of any disqualification attached to
an offence of any nature. Mr. Pandey submitted
that the said provisions do not take into account
the fact relating to repeated offences being
perpetrated by a juvenile whose records of previous
offences are removed. Mr. Pandey contended that
Section 19 of the Act was required to be amended to
enable the concerned authorities to retain records
of previous offences committed by a juvenile for
the purposes of identification of a juvenile with a
propensity to repeatedly commit offences of a
grievous or heinous nature.
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25. Mr. Pandey submitted that Parliament had
exceeded its mandate by blindly adopting eighteen
as the upper limit in categorising a juvenile or a
child, in accordance with the Beijing Rules, 1985,
and the U.N. Convention, 1989, without taking into
account the socio-cultural economic conditions and
the legal system for administration of criminal
justice in India. Mr. Pandey urged that the
Juvenile Justice (Care and Protection of Children)
Act, 2000, was required to operate in conformity
with the provisions of the Constitution of India.
26. Ms. Hema Sahu, the petitioner in Writ Petition
(Civil) No. 182 of 2013, also appeared in person
and restated the views expressed by the other
petitioners that the United Nations Standard
Minimum Rules for the Administration of Juvenile
Justice, commonly known as the “Beijing Rules”,
recognized and noted the difference in the nature
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of offences committed by juveniles in conflict with
law. Referring to the decision of this Court in
the case commonly known as the “Bombay Blasts
Case”, Ms. Sahu submitted that a juvenile who was
tried and convicted along with adults under the
Terrorist and Disruptive Activities Act (TADA), was
denied the protection of the Juvenile Justice (Care
and Protection of Children) Act, 2000, on account
of the serious nature of the offence. Ms. Sahu
ended on the note that paragraph 4 of the 1989
Convention did not make any reference to age.
27. Appearing for the Union of India, the
Additional Solicitor General, Mr. Siddharth Luthra,
strongly opposed the submissions made on behalf of
the Petitioners to either declare the entire
Juvenile Justice (Care and Protection of Children)
Act, 2000, as ultra vires the Constitution or parts
thereof, such as Sections 2(k), 2(l), 15, 16, 17,
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19 and 21. After referring to the aforesaid
provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000, the learned ASG
submitted that Parliament consciously fixed
eighteen years as the upper age limit for treating
persons as juveniles and children, taking into
consideration the general trend of legislation, not
only internationally, but within the country as
well.
28. The learned ASG submitted that the Juvenile
Justice (Care and Protection of Children) Act,
2000, was enacted after years of deliberation and
in conformity with international standards as laid
down in the U.N. Convention on the Rights of the
Child, 1989, the Beijing Rules, 1985, the Havana
Rules and other international instruments for
securing the best interests of the child with the
primary object of social reintegration of child
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victims and children in conflict with law, without
resorting to conventional judicial proceedings
which existed for adult criminals. In the course
of his submissions, the learned ASG submitted a
chart of the various Indian statutes and the manner
in which children have been excluded from liability
under the said Acts upto the age of 18 years. In
most of the said enactments, a juvenile/child has
been referred to a person who is below 18 years of
age. The learned ASG submitted that in pursuance
of international obligations, the Union of India
after due deliberation had taken a conscious policy
decision to fix the age of a child/juvenile at the
upper limit of 18 years. The learned ASG urged
that the fixing of the age when a child ceases to
be a child at 18 years is a matter of policy which
could not be questioned in a court of law, unless
the same could be shown to have violated any of the
fundamental rights, and in particular Articles 14
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and 21 of the Constitution. Referring to the
decision of this Court in BALCO Employees Union Vs.
Union of India [(2002) 2 SCC 333], the learned ASG
submitted that at paragraph 46 of the said judgment
it had been observed that it is neither within the
domain of the Courts nor the scope of judicial
review to embark upon an enquiry as to whether a
particular public policy was wise or whether
something better could be evolved. It was further
observed that the Courts were reluctant to strike
down a policy at the behest of a Petitioner merely
because it has been urged that a different policy
would have been fairer or wiser or more scientific
or more logical. The learned ASG further urged
that Article 15(3) of the Constitution empowers the
State to enact special provisions for women and
children, which reveals that the Juvenile Justice
(Care and Protection of Children) Act, 2000, was in
conformity with the provisions of the Constitution.
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29. The learned ASG submitted that in various
judgments, this Court and the High Courts had
recognised the fact that juveniles were required to
be treated differently from adults so as to give
such children, who for some reason had gone astray,
an opportunity to realize their mistakes and to
rehabilitate themselves and rebuild their lives.
Special mention was made with regard to the
decision of this Court in Abuzar Hossain (supra) in
this regard. The learned ASG also referred to the
decision of this Court in State of Tamil Nadu Vs.
K. Shyam Sunder [(2011) 8 SCC 737], wherein it had
been observed that merely because the law causes
hardships or sometimes results in adverse
consequences, it cannot be held to be ultra vires
the Constitution, nor can it be struck down. The
learned ASG also submitted that it was now well-
settled that reasonable classification is
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permissible so long as such classification has a
rational nexus with the object sought to be
achieved. This Court has always held that the
presumption is always in favour of the
constitutionality of an enactment, since it has to
be assumed that the legislature understands and
correctly appreciates the needs of its own people
and its discriminations are based on adequate
grounds.
30. Referring to the Reports of the National Crime
Reports Bureau, learned ASG pointed out that the
percentage of increase in the number of offences
committed by juveniles was almost negligible and
the general public perception in such matters was
entirely erroneous. In fact, the learned ASG
pointed out that even the Committee appointed to
review the amendments to the criminal law, headed
by former CJI, J.S. Verma, in its report submitted
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on 23rd January, 2013, did not recommend the
reduction in the age of juveniles in conflict with
law and has maintained it at 18 years. The learned
ASG pointed out that the issue of reduction in the
age of juveniles from 18 to 16 years, as it was in
the Juveniles Justice Act of 1986, was also raised
in the Lok Sabha on 19th March, 2013, during the
discussion on the Criminal Law (Amendment) Bill,
2013, but was rejected by the House.
31. The learned ASG submitted that the occurrence
of 16th December, 2012, involving the alleged gang
rape of a 23 year old girl, should not be allowed
to colour the decision taken to treat all persons
below the age of 18 years, as children.
32. Mr. Anant Asthana, learned Advocate appearing
for HAQ : Centre for Child Rights, submitted that
the Juvenile Justice (Care and Protection of
Children) Act, 2000, as amended in 2006 and 2011,
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is a fairly progressive legislation, largely
compliant with the Constitution of India and the
minimum standards contained in the Beijing Rules.
Mr. Asthana contended that the reason for incidents
such as the 16th December, 2012, incident, was not
on account of the provisions of the aforesaid Act,
but on account of failure of the administration in
implementing its provisions. Learned counsel
submitted that all the Writ Petitions appeared to
be based on two assumptions, namely, (i) that the
age of 18 years for juveniles is set arbitrarily;
and (ii) that by reducing the age for the purpose
of defining a child in the aforesaid Act,
criminality amongst children would reduce. Mr.
Asthana submitted that such an approach was flawed
as it had been incorrectly submitted that the age
of 18 years to treat persons as children was set
arbitrarily and that it is so difficult to
comprehend the causes and the environment which
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brings children into delinquency. Mr. Asthana
submitted that the answer lies in effective and
sincere implementation of the different laws aimed
at improving the conditions of children in need of
care and protection and providing such protection
to children at risk. Mr. Asthana urged that the
objective with which the Juvenile Justice (Care and
Protection of Children) Act, 2000, was enacted was
not aimed at delivering retributive justice, but to
allow a rehabilitative, reformation-oriented
approach in addressing juvenile crimes. Learned
counsel submitted that the apathy of the
administration towards juveniles and the manner in
which they are treated would be evident from the
fact that by falsifying the age of juveniles, they
were treated as adults and sent to jails, instead
of being produced before the Juvenile Justice Board
or even before the Child Welfare Committees to be
dealt with in a manner provided by the Juvenile
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Justice (Care and Protection of Children) Act,
2000, for the treatment of juveniles.
33. Mr. Asthana submitted that even as recently as
26th April, 2013, the Government of India has
adopted a new National Policy for Children, which
not only recognises that a child is any person
below the age of eighteen years, but also states
that the policy was to guide and inform people of
laws, policies, plans and programmes affecting
children. Mr. Asthana urged that all actions and
initiatives of the national, State and local
Governments in all sectors must respect and uphold
the principles and provisions of this policy and it
would neither be appropriate nor possible for the
Union of India to adopt a different approach in the
matter. Mr. Asthana, who appears to have made an
in-depth study of the matter, submitted that on the question of making the provisions in the Juvenile
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Justice (Care and Protection of Children) Act,
2000, conform to the provisions of the Constitution
and to allow the children of a specific age group
to be treated as adults, it would be appropriate to
take note of General Comment No.10 made by the U.N.
Committee on the rights of the child on 25th April,
2007, which specifically dealt with the upper age
limit for juveniles and it was reiterated that
where it was a case of a child being in need of
care and protection or in conflict with law, every
person under the age of 18 years at the time of
commission of the alleged offence must be treated
in accordance with the Juvenile Justice Rules. Mr.
Asthana submitted that any attempt to alter the
upper limit of the age of a child from 18 to 16
years would have disastrous consequences and would
set back the attempts made over the years to
formulate a restorative and rehabilitative approach
mainly for juveniles in conflict with law.
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34. In Writ Petition (Civil) No.85 of 2013, a
counter affidavit has been filed on behalf of the
Ministry of Women and Child Development, Government
of India, in which the submissions made by the ASG,
Mr. Siddharth Luthra, were duly reflected. In
paragraph I of the said affidavit, it has been
pointed out that the Juvenile Justice (Care and
Protection of Children) Act, 2000, provides for a
wide range of reformative measures under Sections
15 and 16 for children in conflict with law – from
simple warning to 3 years of institutionalisation
in a Special Home. In exceptional cases, provision
has also been made for the juvenile to be sent to a
place of safety where intensive rehabilitation
measures, such as counselling, psychiatric
evaluation and treatment would be undertaken.
35. In Writ Petition (C) No.10 of 2013 filed by
Shri Salil Bali, an application had been made by
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the Prayas Juvenile Aid Centre (JAC), a Society
whose Founder and General Secretary, Shri Amod
Kanth, was allowed to appear and address the Court
in person. Mr. Amod Kanth claimed that he was a
former member of the Indian Police Service and
Chairperson of the Delhi Commission for the
Protection of Child Rights and was also the founder
General Secretary of the aforesaid organisation,
which came into existence in 1998 as a special unit
associated with the Missing Persons Squad of the
Crime and Railway Branch of the Delhi Police of
which Shri Amod Kanth was the in-charge Deputy
Commissioner of Police. Mr. Amod Kanth submitted
that Prayas was created in order to identify and
support the missing and found persons, including
girls, street migrants, homeless, working and
delinquent children who did not have any support
from any organisation in the Government or in the
non-governmental organisation sector.
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36. Mr. Kanth repeated and reiterated the
submissions made by the learned ASG and Mr. Asthana
and also highlighted the problems faced by children
both in conflict with law and in need of care and
protection. Mr. Kanth submitted that whatever was
required to be done for the rehabilitation and
restoration of juveniles to a normal existence has,
to a large extent, been defeated since the various
provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 and the Rules of
2007, were not being seriously implemented. Mr.
Kanth urged that after the ratification by India of
the United Nations Convention on the Rights of the
Child on 11th December, 1992, serious thought was
given to the enactment of the Juvenile Justice
(Care and Protection of Children Act), 2000, which
came to replace the Juvenile Justice Act, 1986.
Taking a leaf out of Mr. Asthana’s book, Mr. Kanth
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submitted that even after thirteen years of its
existence, the provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2000, still
remained unimplemented in major areas, which made
it impossible for the provisions of the Act to be
properly coordinated. Mr. Kanth submitted that one
of the more important features of juvenile law was
to provide a child-friendly approach in the
adjudication and disposition of matters in the best
interest of children and for their ultimate
rehabilitation through various institutions
established under the Act. Submitting that the
Juvenile Justice (Care and Protection of Children)
Act, 2000, was based on the provisions of the
Indian Constitution, the United Nations Convention
on the Rights of the Child, 1989, the Beijing Rules
and the United Nations Rules for the Protection of
the Juveniles Deprived of their Liberty, 1990, Mr.
Kanth urged that the same was in perfect harmony
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with the provisions of the Constitution, but did
not receive the attention it ought to have received
while dealing with a section of the citizens of
India comprising 42% of the country’s population.
37. Various measures to deal with juveniles in
conflict with law have been suggested by Mr. Kanth,
which requires serious thought and avoidance of
knee-jerk reactions to situations which could set a
dangerous trend and affect millions of children in
need of care and protection. Mr. Kanth submitted
that any change in the law, as it now stands,
resulting in the reduction of age to define a
juvenile, will not only prove to be regressive, but
would also adversely affect India’s image as a
champion of human rights.
38. Having regard to the serious nature of the
issues raised before us, we have given serious
thought to the submissions advanced on behalf of
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the respective parties and also those advanced on
behalf of certain Non-Government Organizations and
have also considered the relevant extracts from the
Report of Justice J.S. Verma Committee on
“Amendments to the Criminal Law” and are convinced
that the Juvenile Justice (Care and Protection of
Children) Act, 2000, as amended in 2006, and the
Juvenile Justice (Care and Protection of Children)
Rules, 2007, are based on sound principles
recognized internationally and contained in the
provisions of the Indian Constitution.
39. There is little doubt that the incident, which
occurred on the night of 16th December, 2012, was
not only gruesome, but almost maniacal in its
content, wherein one juvenile, whose role is yet to
be established, was involved, but such an incident,
in comparison to the vast number of crimes
occurring in India, makes it an aberration rather
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than the Rule. If what has come out from the
reports of the Crimes Record Bureau, is true, then
the number of crimes committed by juveniles comes
to about 2% of the country’s crime rate.
40. The learned ASG along with Mr. Asthana and Mr.
Kanth, took us through the history of the enactment
of the Juvenile Justice (Care and Protection of
Children) Act, 2000, and the Rules subsequently
framed thereunder in 2007. There is a definite
thought process, which went into the enactment of
the aforesaid Act. In order to appreciate the
submissions made on behalf of the respective
parties in regard to the enactment of the aforesaid
Act and the Rules, it may be appropriate to explore
the background of the laws relating to child
protection in India and in the rest of the world.
41. It cannot be questioned that children are
amongst the most vulnerable sections in any
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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
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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
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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.
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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.
43. India developed its own jurisprudence relating
to children and the recognition of their rights.
With the adoption of the Constitution on 26th
November 1949, constitutional safeguards, as far as
weaker sections of the society, including children,
were provided for. The Constitution has guaranteed
several rights to children, such as equality before
the law, free and compulsory primary education to
children between the age group of six to fourteen
years, prohibition of trafficking and forced labour
of children and prohibition of employment of
children below the age of fourteen years in
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factories, mines or hazardous occupations. The
Constitution enables the State Governments to make
special provisions for children. To prevent female
foeticide, the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex
Selection) Act was enacted in 1994. One of the
latest enactments by Parliament is the Protection
of Children from Sexual Offences Act, 2012.
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, as was brought to our notice
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during the hearing. Of course, it has been
submitted by Dr. Kishor that the description in
Article 1 of the Convention was a contradiction in
terms. While generally treating eighteen to be the
age till which a person could be treated to be a
child, it 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. In this connection, reference may
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be made to the chart provided by Mr. Kanth, wherein
the various laws relating to children generally
recognize eighteen years to be the age for
reckoning a person as a juvenile/ child including
criminal offences.
45. In any event, in the absence of any proper
data, it would not be wise on our part to deviate
from the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000, which
represent the collective wisdom of Parliament. It
may not be out of place to mention that in the
Juvenile Justice Act, 1986, male children above the
age of sixteen years were considered to be adults,
whereas girl children were treated as adults on
attaining the age of eighteen years. In the
Juvenile Justice (Care and Protection of Children)
Act, 2000, a conscious decision was taken by
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Parliament to raise the age of male
juveniles/children to eighteen years.
46. In recent years, there has been a spurt in
criminal activities by adults, but not so by
juveniles, as the materials produced before us
show. The age limit which was raised from sixteen
to eighteen years in the Juvenile Justice (Care and
Protection of Children) Act, 2000, is a decision
which was taken by the Government, which is
strongly in favour of retaining Sections 2(k) and
2(l) in the manner in which it exists in the
Statute Book.
47. One misunderstanding of the law relating to the
sentencing of juveniles, needs to be corrected.
The general understanding of a sentence that can be
awarded to a juvenile under Section 15(1)(g) of the
Juvenile Justice (Care and Protection of Children)
Act, 2000, prior to its amendment in 2006, is that
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after attaining the age of eighteen years, a
juvenile who is found guilty of a heinous offence
is allowed to go free. Section 15(1)(g), as it
stood before the amendment came into effect from
22nd August, 2006, reads as follows:
“15(1)(g) make an order directing the juvenile to be sent to a special home for a period of three years: (i) in case of juvenile, over seventeen years but less than eighteen years of age, for a period of not less than two years;
(ii)in case of any other juvenile for the period until he ceases to be a juvenile:
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.”
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It was generally perceived that a juvenile was
free to go, even if he had committed a heinous
crime, when he ceased to be a juvenile.
The said understanding needs to be clarified on
account of the amendment which came into force with
effect from 22.8.2006, as a result whereof Section
15(1)(g) now reads as follows:
“Make an order directing the juvenile to be sent to a special home for a period of three years:
Provided that the Board may if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded reduce the period of stay to such period as it thinks fit.”
The aforesaid amendment now makes it clear that
even if a juvenile attains the age of eighteen
years within a period of one year he would still
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have to undergo a sentence of three years, which
could spill beyond the period of one year when he
attained majority.
48. There is yet another consideration which
appears to have weighed with the worldwide
community, including India, to retain eighteen as
the upper limit to which persons could be treated
as children. In the Bill brought in Parliament for
enactment of the Juvenile Justice (Care and
Protection of Children) Act of 2000, it has been
indicated that the same was being introduced to
provide for the care, protection, treatment,
development and rehabilitation of neglected or
delinquent juveniles and for the adjudication of
certain matters relating to and disposition of
delinquent juveniles. The essence of the Juvenile
Justice (Care and Protection of Children) Act,
2000, and the Rules framed thereunder in 2007, is
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restorative and not retributive, providing for
rehabilitation and re-integration of children in
conflict with law into mainstream society. The age
of eighteen has been fixed on account of the
understanding of experts in child psychology and
behavioural patterns that till such an age the
children in conflict with law could still be
redeemed and restored to mainstream society,
instead of becoming hardened criminals in future.
There are, of course, exceptions where a child in
the age group of sixteen to eighteen may have
developed criminal propensities, which would make
it virtually impossible for him/her to be re-
integrated into mainstream society, but such
examples are not of such proportions as to warrant
any change in thinking, since it is probably better
to try and re-integrate children with criminal
propensities into mainstream society, rather than
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to allow them to develop into hardened criminals,
which does not augur well for the future.
49. 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
the Rules framed thereunder in 2007, and the data
available with regard to the commission of heinous
offences by 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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50. The Writ Petitions and the Transferred Case
are, therefore, dismissed, with the aforesaid
observations. There shall, however, be no order as
to costs.
…………………………………………………CJI. (ALTAMAS KABIR)
………………………………………………………J. (SURINDER SINGH NIJJAR)
………………………………………………………J. (J. CHELAMESWAR)
New Delhi Dated:July 17, 2013.