Janata Party president Subramanian Swamy filed a petition in the Supreme Court, urging it to read down the provisions of the Juvenile Justice Act that gives blanket protection to all offenders below 18 years from penal provisions irrespective of the gravity of the crime.
In a special leave petition, he raised the issue of one of the accused in the December 16 Delhi gang rape case being declared juvenile and given immunity despite reports that mention he is the most brutal among the rapists.
He contended that the juvenile law was not in consonance with the developing international law as the fundamental rights of the victim under Article 21 of the Constitution were unreasonably abridged.
Swamy said the ‘right to life’, ‘right to free and fair trial’ and ‘the rights of victim’ were compromised by the legally erroneous view that for a crime of even rape and pre-meditated murder a blanket protection can be given to the juvenile accused under the Act.
“Offenders like Raju (an assumed name), can never be termed “juvenile delinquents”. This term was never intended to comprehend such vicious, perverse and bestial criminals; nor was it intended that victims of such crimes get neither justice nor protection from such vicious, perverse and bestial criminals.”
“Under the garb of “beneficial legislation” the impugned interpretation of Section 2(k) and (l) of the Act, is unsound in that it provides a blanket protection to every person below the age of 18 years from penal prosecution in ordinary Criminal Courts and is arbitrary and violative of Article 14 of the Constitution of India,” the petition said.
It cited the UN Convention on Rights of Child 1989 and Beijing rules 1985, which had recognized that there can neither be any hard and fast rule nor blanket protection solely on age criteria and in appropriate cases criminal behavior is to be punished with lengthy imprisonment. As per the Juvenile Justice (Care and Protection of Children) Act 2000, if any minor was found guilty of an offence, he could be sent by the Juvenile Justice Board to a special home for a maximum period of three years.
In his SLP, Swamy challenged an order passed by the Delhi HC on January 23 declining to interfere in the matter then pending before the Juvenile Justice Board.
“The approach under the Juvenile Justice Act has to be inspired by the provisions of the IPC. Where the child who has committed a heinous offence is over the age of 12 (though under 18 years of age) the court is not constrained by any provision of law, to determine whether or not the child (beyond 12 and under 18) has attained sufficient maturity of understanding to judge of the nature and consequences of the conduct in question. Indeed it must so determine,” the petition said.
A judicial review of the definition of juvenile as given in the Act would necessarily lead to reading down the relevant clauses harmoniously and make them consistent with the international law, he said.