No legal provision to keep juvenile accused of gang rape in observation...

No legal provision to keep juvenile accused of gang rape in observation home for more than 3 years

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One of the accused persons in December 16, 2012 gang rape case happened to be a juvenile, i.e., of age less than 18 years. Due to this reason, under the provisions of the existing laws, he could not have been sentenced to death or to imprisonment. Under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, he was directed to be kept in a special home or an observation home for a maximum permissible period of three years. Now that the said three years’ period is getting over, he is likely to be released from the observation home on Sunday (December 20, 2015). A petition was filed before the Delhi High Court to extend the stay of the said juvenile accused in observation home and to not to release him. Parents of the deceased victim of the said gang rape also pleaded for not releasing the said juvenile accused. However, Delhi High Court did not agree with such plea and has refused to extend the stay of the said juvenile accused in observation home [see: December 16 gang rape juvenile accused will have to be released, says Delhi HC]. It is submitted that the High Court has rightly done so since the legal provisions do not permit it.

It is pertinent to point out that the Statement of Objects and Reasons of the Juvenile Justice (Care and Protection of Children) Act, 2000, stated that much greater attention was required to be given to children in conflict with law or those in need of care and protection. The justice system as available for adults was not considered suitable for being applied to a juvenile or the child.

The Preamble to the said Act emphasised that the Constitution has, in several provisions, including clause (3) of Article 15, clauses (e) and (f) of Article 39, Articles 45 and 47, imposed on the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected; that the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on the 20th November, 1989 prescribed a set of standards to be adhered to by all State parties in securing the best interests of the child; that the said Convention emphasises social reintegration of child victims, to the extent possible, without resorting to judicial proceedings. In accordance with these principles, the Parliament enacted the aforesaid Juvenile Justice (Care and Protection of Children) Act, 2000, to protect the rights of juveniles.

Under the provisions of the said Act, a juvenile cannot be subjected to the usual judicial procedures in respect of an offence committed by him and he cannot be awarded the usual punishments prescribed under the criminal laws.

Where it is established that a juvenile has committed an offence, an order can be passed by the Juvenile Justice Board against him in following terms, under the provisions of Section 15 of the said Act:

(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;

(b) direct the juvenile to participate in group counselling and similar activities;

(c) order the juvenile to perform community service;

(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;

(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;

(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;

(g) make an order directing the juvenile to be sent to a special home for a period of three years:

Provided that the Boards 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.

Thus, the maximum punishment that can be awarded to a juvenile accused is sending him to a special home for a period of three years, and not more.

Likewise, Section 16 of the said Act provides that no juvenile in conflict with law shall be sentenced to death or imprisonment 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. However, it has been provided that where a juvenile, who has attained the age of sixteen years, has committed an offence and the  Juvenile Justice Board is satisfied that the offence committed is of 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 the said 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. However, the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of the said Act, which means such period also cannot exceed the maximum of three years.

It is noteworthy that the above provisions in the said Act have specifically been enacted to override any other contrary provisions in the existing laws (i.e., notwithstanding anything to the contrary contained in any other law for the time being in force). Therefore, the provisions of the aforesaid Juvenile Justice (Care and Protection of Children) Act, override all contrary provisions in any other law.

It should thus be clear that there is no provision in the aforesaid Act (which overrides other laws to the extent they are contrary) to keep a juvenile accused in an observation home, special home or any other place for a period exceeding three years.

In view of the aforesaid reasons, the law does not permit a juvenile to be kept in an observation home for a period of more than three years, notwithstanding the nature and gravity of the offence committed by him.

It is noteworthy that criminal laws are interpreted strictly and they cannot be interpreted widely. Moreover, Article 20(1) of the Constitution guarantees a fundamental right to every person by mandating, inter-alia, that  no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Therefore, the juvenile who is accused of having committed the aforesaid gang rape (along with other accused persons) on 16 December, 2012, cannot be subjected to a penalty greater than what was laid down under laws at that time. And, as mentioned above, the maximum penalty that could have been imposed on the juvenile as per the then existing laws was keeping him in a special home or an observation home, etc., for a maximum period of three years. Therefore, it is not possible under law to keep him in an observation home for a period longer than three years.

In view of these reasons, I am of the considered opinion that the Delhi High Court has rightly decided not to extend the stay of the juvenile accused of the said gang rape in December 2012.

Whether we like or not, law must follow its own course. There may be a case for amending the existing laws with regard to juveniles who commit serious offences such as rape. However, as and when the existing laws are amended, they will be applicable only from the future date of such amended laws coming into force. Such amended laws also cannot be applied retrospectively in view of the fundamental right guaranteed under Article 20(1) of the Constitution, as mentioned above.

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