Monday, December 2, 2013

Should 'juvenile maturity' be yardstick in trials?

 As the Centre prepares to deal with the public demand post-Nirbhaya case to limit the lenient trial process under the Juvenile Justice (Care and Protection) Act of those aged 16-18 years accused of heinous crimes, the Supreme Court on Monday touched on the maturity of juveniles as a yardstick in such cases.

Should not trial courts examine the 'level of maturity and understanding' of a juvenile before permitting his trial by a Juvenile Justice Board, especially in serious and heinous offences, asked a bench of Justices B S Chauhan and S A Bobde before seeking a response from the Union ministry of women and child development.

In the brutal gang-rape-cum murder of Nirbhaya, a 17-year-old accused was tried by a Juvenile Justice Board and remanded to three years in a reform home. Other adult co-accused were convicted by a criminal court and awarded death penalty.

Given the remorseless barbarity shown by the perpetrators of the heinous crime, there has been a clamour for revisiting the lenient provisions of the JJ Act that allow those involved in such serious offences to receive lighter punishment solely because they were under 18 years at the time of commission of the crime.

Nirbhaya's parents through counsel Aman Hingorani argued before Justices Chauhan and Bobde about the constitutional transgression effected by Parliament-enacted JJ Act, which took away the Indian Penal Code conferred jurisdiction on normal criminal courts to try a person accused of a crime.

Hingorani said the IPC had provided for exceptions - Section 82 saying nothing is an offence that is done by a child below 7 years of age; and Section 83 which says "nothing is an offence which is done by a child above seven years of age and under 12, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion".

He said the discretion vested in the court to test the maturity level of a child and co-relate it to commission of offence, as provided under the IPC, had been taken away by the JJ Act. The law warranted that a person accused of the crime, if he was below the age of 18 years, should be mandatorily tried by a JJ Board.

The bench clarified the petitioners' challenge to the constitutionality of the JJ Act might not stand judicial scrutiny as it was a special law enacted by Parliament keeping in view India's obligations under international treaties and agreements.

However, it agreed with Hingorani that it could be examined whether the JJ Act could have stripped normal criminal courts of the power conferred under Section 83 of the IPC to examine the maturity and understanding level of the juvenile aged 16-18 years and involved in a heinous offence.

It issued notice to the Union ministry of women and child development and sought its response within four weeks. However, it declined to seek response of the juvenile in Nirbhaya case for the time being.

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