Supreme Court – last minute effort to stop the release the juvenile offender
In what looks likes a scene drawn from the Indian Cinema, on the late night of Saturday 20th December 2015, Swati Maliwal, Chief of the Delhi Commission for Women (DCW), moved the Supreme Court, seeking the court’s intervention against the release of the juvenile convict, the lone juvenile offender among the attackers in the December 16, 2012 gang-rape case.
The juvenile offender, who had just turned 20 was due to be released on Sunday 21 December 2015 after spending three years in a correctional home in Delhi under the Juvenile Justice Act. The Supreme Court agreed to hear the matter on Monday 22nd December 2015.
On Monday 22nd December 2015, the Supreme Court did hear the matter. A bench of Justices Adarsh K Goel and Uday U Lalit refused to order any further detention. They observed:
“We also share your concerns but we have to go by the law as it stands today. Any further detention would need a legislative sanction. The law is very clear that a juvenile cannot be detained beyond three years… so what kind of interim orders can be passed by us? ”
The parents of the victim blamed every one for not passing the Amendment to the Juvenile Justice Act which they felt would have prevented the release of the juvenile offender. Surprisingly, no one told them that even an amendment in a criminal legislation can not be done retrospectively.
Did not Swati Maliwal, Chief of the Delhi Commission for Women (DCW) know this basic principal of criminal jurisprudence? Why did she raise false hopes?
Proposed Amendment to the Juvenile Justice Act
Under the proposed new law, anyone charged with a “heinous crime” —for which the minimum punishment for an adult is seven years —who is aged between 16 years old and 18 years old can be tried as an adult.
But first, a juvenile justice board, consisting of a magistrate and two social workers, would have to assess the mental and physical capacity of the person to commit such an offence as well as that person’s ability to understand the consequences of the crime.
The board can ask for the advice of psychologists and other experts.
The decision to try a person as an adult would then need to be ratified by the Children’s Court, which would also draw up a plan for rehabilitation.
If found guilty, a child who is tried as an adult must then be “sent to a place of safety” until turning 21, when he or she would be transferred to jail.
United Nations Convention on the Rights of the Child
The Proposed amendment also contravenes the United Nations Convention on the Rights of the Child, which India has ratified. The convention says all people under the age of 18 must be treated equally. Then there are Commission to safe guard the interests of children too.
Amendment Bill passed in a hurry
The law which has gathered dust for so many years has been passed in a day without any real discussion.