The Telegraph
Tuesday , July 15 , 2014
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Nudge on juvenile rethink

New Delhi, July 14: The Supreme Court today asked the Centre to reconsider the issue of juvenile immunity, asking whether those accused of heinous crimes like murder, kidnapping and drug offences should be spared just because they were aged under 18.

The development came as the court stayed the Netai massacre trial on a CBI appeal challenging the Calcutta High Court’s grant of juvenile status to Swapan Roy, one of the 20 accused.

If people can vote at 18, the bench of Justices Dipak Misra and V. Gopala Gowda told attorney-general Mukul Rohatgi, why should those just under 18 committing “whatever offence: rape, murder, NDPS (drug cases) go exonerated on the ground of juvenility?”

Maturity isn’t attained overnight at 18 but gradually, the bench suggested, arguing that those a little younger than 18 were mature enough to understand the consequences of their actions.

A three-judge apex court bench had on March 28 this year ruled that it could not direct the Centre to lower the age of juvenility but the two-judge bench today reopened the debate.

Under-18 accused are tried under the Juvenile Justice Act of 2000, which prescribes a maximum punishment of three years in a reformatory home.

The March 28 judgment came on a petition moved by the family of the December 16, 2012, Delhi gang-rape victim and BJP leader Subramanium Swamy challenging the immunity granted to one of the accused who was a juvenile at the time of the crime.

Following public pressure after the brutal gang-rape, the government had proposed an amendment to the JJ Act that would allow the Juvenile Justice Board leeway to have someone aged between 16 and 18 and accused of a heinous crime tried under the regular law. The draft has been cleared by the law ministry and awaits cabinet nod.

Rohatgi told the court the issue had already been settled by the three-judge bench ruling in March and certain earlier judgments. He added that India was bound by the UN Convention on juvenile rights, to which it was a signatory.

But Justice Misra, who headed the bench, retorted: “India is not bound by the UN conventions. It has its own Constitution and rules.”

The bench seemed to be referring to an ancient counsel to Indian fathers as it observed: “You may be aware that 2,000 years ago it was said that after a boy attained the age of 16 years, treat him as a friend.”

It added: “Go by how the human neurons (nerve cells) are growing. Liberty isn’t absolute under Article 21. You really can’t have a cut-off date like in service jurisprudences (government service rules have strict age cut-offs for promotions and retirement).

“Democracy rests on the rule of law. Rule of law is the spine. Let us not be oblivious of the crime that takes place.”

Rohatgi said: “Yes, if necessary, we can amend the rules. There can be more flexibility.”

He urged the court to grant him 10 days to research the subject before filing the Centre’s response. The bench adjourned the matter till August 16.

Earlier, CBI counsel Rajeev Nanda had told the bench the high court had granted immunity to Roy despite the trial court holding him an adult on the basis of an ossification test.

He said Roy had no birth certificate or school certificate that could prove him a juvenile at the time of the January 2011 incident, when suspected CPM cadres killed nine villagers in West Midnapore.