Supreme Court of India
DR. SUBRAMANIAN SWAMY & ORS.versusRAJU THR. MEMBER JUVENILE JUSTICE BOARD & ANR.
- Citation
- 2014 INSC 221
- Decided
- 28 March 2014
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
The Juvenile Justice Act, 2000 (as amended) is constitutionally valid; its classification of all persons under 18 as juveniles is reasonable and consistent with Art. 14, and the Act need not be read down.
Summary
The Supreme Court examined the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended) after a 23‑year‑old woman was murdered and one of the accused, Raju, was a minor. Petitioners sought to have the Act read down so that juveniles who commit serious offences could be tried in regular criminal courts. The Court held that the Act was enacted to fulfil India's international obligations under the Beijing Rules, the UN Convention on the Rights of the Child and the Havana Rules, and that it is a beneficial piece of legislation. It found the language of the Act clear and unambiguous, ruling that classification of all persons under 18 as "juveniles" is a permissible classification under Art. 14 and does not require reading down. Consequently, the appeal and the writ petition were dismissed.
Issues considered
- The constitutional validity of Sections 1(4), 2(k), 2(1) and 7 of the Juvenile Justice Act, 2000 (as amended).
- Whether classifying all persons below 18 as juveniles violates Art. 14 of the Constitution.
- Whether the Act should be read down to allow juveniles who commit heinous offences to be tried in regular courts.
- Whether the Act is consistent with India's international obligations under the Beijing Rules, UNCRC and Havana Rules.
Legislation cited
- Code of Criminal Procedures. 156, s. 157, s. 173, s. 41, s. 436, s. 437
- Constitution of Indias. Art.14, s. Art.20(3)
- Indian Penal Code, 1860s. 300, s. 376, s. 82, s. 83
- Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended)s. 1(4), s. 15, s. 2(1), s. 28, s. 2(k), s. 40, s. 7
Subjects
Juvenile Justice ActArticle 14ClassificationReading downConstitutional validityInternational conventionsHeinous offenceMental maturityJuvenile offender
Judgment
[2014] 9 S.C.R. 283
DR. SUBRAMANIAN SWAMY & ORS. A
v.
RAJU THR. MEMBER JUVENILE JUSTICE BOARD &
ANR.
(Criminal Appeal No.695 of 2014)
B
MARCH 28, 2014
[P. SATHASIVAM, CJI, RANJAN GOGOi AND
SHIVA KIRTI SINGH, JJ.]
Juvenile Justice Act, 2000 (as amended) - C
Constitutionality of - Enactment of the Act - Purpose -
lnclusioh of all persons under the age .o(18 into a .class called
'juveniles' - Validity - Held: The Act was enacted to give full
and complete effect to the country's international obligations
arising from India being a sigRatory to three separate D
conventions, namely, the Beijing Rules, the UN Convention
and the Havana Rules - Also, the Act is a beneficial piece of
legislation - If the Act is plainly read and understood, the
resultant effect thereof is wholly consistent with Art. 14 - The
Act, therefore, need not be read down, as suggested, to save E .
it from· the vice of uncons(itutionafity for such
unconstitu#orrality does not exist - If the legislature has
adopted the age of 18 as the dividing line between juveniles
and adults-End such a decision is constitution-any permissible
the enquiry by the Courts must com,£;1, to an end - Even F
otherwise there is a considerable body of world opinion that
all under 18 persons ought to be treated as juveniles and
separate treatment ought to be meted out to them so far as
offences committed by such persons are concerned.
.
Juvenile Justice Act, 2000 (as amended) - Criminal G
justice system and the system for dea/-ing with offenders under
the Act - Difference between - Elucidated.
283 H
A
284 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Constitution of India - Art. 14 - Classification or
categorization of persons into one class/group - Validity -
Held: Classification or categorization need not be the outcome
of a mathematical or arithmetical precision in the similarities
of the persons included in a class and there may be
B differences amongst the members included within a particular
class - So long as the broad features of the categorization are
identifiable and distinguishable and the categorization made
is reasonably connected with the object targeted, Art. 14 will
not forbid such a course of action - Juvenile Justice Act, 2000
c (as amended).
Doctrines - Doctrin(!C:'-Of "reading. down" - Principles of -
Held: Reading down the provisions of a sti11ute cannot be
resorte·d to when the meaning thereof is plain and
unambiguous and the legislative intent is Clear.
D
Interpretation of Statutes - Thinking and practices in
foreign jurisdictions - Relevance of - Held: Contrary
international opinion, thinking or practice does not dictate the
legislation of a sovereign nation - Juvenile Justice.
E
Dismissing the appeal and the writ petition, the Court
HELD:1.1. The Juvenile Justice Act (as amended), as
manifestly clear from the Statement of Objects and
Reasons, has been enacted to give full and complete
F effect to the country's international obligations arising
from India being a signatory to the three separate
conventions, namely, the Beijing Rules, the UN
Convention and the Havana Rules. Also, the Act is a
beneficial piece of legislation and must therefore receive
G its due interpretation as a legislation belonging to the
said category. [Para 39] [320-H; 321-A-B, C]
1.2. Reading down the provisions of a statute cannot
be resorted to when the meaning thereof is plain and
H
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 285
JUVENILE JUSTICE BOARD
unambiguous and the legislative intent is clear. Courts A
must read the legislation literally in the first instance. If
on such reading and understanding the vice of
unconstitutionality is attracted, the courts must explore
whether there has been an unintended legislative
omission. If such an intendment can be reasonably B
implied without undertaking what, unmistakably, would
be a. legislative exercise, the Act may be read down to
save it .from unconstitutionality. [Para 42] [323-8-D]
1.3. In the present case, there is no ambiguity, much C
less any uncertainty, in the language used to convey
what the legislature had intended. All persons below the
age of 18 are put in one class/group by the Act to provide
a separate scheme of investigation, trial and punishment
for offences committed by them. A class of persons is
sought to be created who are treated differently. This is D
being done to further/effectuate the views of the
international community which India has shared by being
a signatory to the several conventions and treaties. [Para
43] [324-E-G]
E
1.4. Classification or categorization need n<?t be the
outcome of a mathematical or arithmetical precision in the
similarities of the persons included in a class and there
may be differences amongst the members included within
a particular class. So long as the broad features of the F,
categorization are identifiable and distinguishable and the
categorization made is reasonably connected with the
object targeted, Article 14 will not forbid such a course
of action. If the inclusion of all under 18 into a class called
'juveniles' is understood in the above manner, differences G
inter se and within the under 18 category may exist.
Article 14 will, however, tolerate the said position.
Precision and arithmetical accuracy will not exist in any
categorization. But such precision and accuracy is not
what Article 14 contemplates. If the Act is plainly read and Ii
understood, the resultant effect thereof is wholly
286 SUPREME CGURT REPORTS [2014) 9 S.C.R.
A consistent with Article 14. The Act, therefore, need not
: be read down, as suggested, to save it from the vice of
unconstitutionality for such unconstitutionafity does not
exist. [Paras 44, 45] [324-H, A-8, F] ·
B
1.5. That in certain foreign jurisdictions, the position
is otherwise would hardty be of any consequence so far
as ou.r country is concerned. Contrary international
opinion, thinking or practice, even if assumed, does not
dictate the legislation of a sovereign nation. If the
legis1ature bas adopted the age of 18 as the dividing line
c between juveniles and adults and such a decision is
constitutionally permissible the enqutry by the Courts
·must come to an end. Even otherwise there is a
considerable body of world opinion that all under 18
persons ought to be treated as juveniles and separate .
D treatment otrght to be meted out to them so far as
offences committed by such persons are concerned. The
'avowed object is to ensure their rehabilitation in society
and to enable the young offenders to become useful
members of the society in later years. India has aecepted
E the above position and legislative wisdom has led to the
enactment of the JJ Act in its present form. [Para 46)
{326-A-D]
1.6. There is djfference between the criminal justice
F system and the system for dealing with offenders under
the JJ Act. The Act does not do away or obliterate the
enforcement of the law insofar as juven11e offenders -ar~
concerned. The same penal law i.e. Indian Penal Code
apply to all juveniles. The only difference is that a
G different scheme for trial and ptirnsbment Is introduced
by the Act in place of the regular pr-0visions under the
Code of Criminal Procedure for trial of offenders and the
punishments under the Indian Penal Code. Nothing
sweeping and drastic has been introduced by the
provisions of the Act so that the Act sets at naught all
H
DR SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 287
JUVENILE JUSTICE BOARD
the essential features of the criminal justice system and A
introduces a scheme which is abhorrent to our
constitutional values. [Para'47] [326-F-G; 327-D-E]
Mithu vs. State of Punjab (1983) 2 SCC 277: 1983 (2)
SCR 690 and Dadu vs. State of Maharashtra (2000) 8 SCC B
437 - distinguished.
Pratap Singh vs. State of Jharkhand and Another (2005)
3 SCC 551: 2005 (2) SCR 576 - followed.
Delhi Transport Corporation vs. D. T. C. Mazdoor c
Congress and Others 1991 Supp. (1) SCC 600: 1990 (1)
Suppl. SCR 142; Murthy Maleh Works and Others vs. The
Asstt Collector of Central Excise and Another(t974) 4 SCC
428: 1974 (3) SCR 121; Roop Chand Adlakha and Others
vs. Delhi Development Authority and Others 1·959 Supp (1)
0
SCC 116: 1988 (3) Suppl. SCR 253; Kartar Singh vs. State
of Punjab (1994) 3 SCC 569: 1994 (2) SCR 375; Basheer
alias N.P. Basheer vs. State of Kerala (2004) 3 sec 609:
20-04 (2) SCR 224; B. Manmad Reddy and Others vs.
Chandra Prakash Reddy and Others (2010) 3 SCC 314: E
2010 (2) SCR 860 and Transport and Dock Workers Union
and Others vs. Mumbai Port Trust and Another (2011) 2 SCC
575: 2010 (14) SCR 873 - relied on.
Essa @ Anjum Abdul Razak Memon vs. State of
Maharashtra (2013) 3 SCALE 1; Sa/ii Bali vs. Union of India F
(2013) 4 SCC 705; Kesho Ram and Others vs. Union of India
and Others (1989) 3 SCC 151: 1989 (2) SCR 1005; Natural
Resources Allocation, In Re, Special Reference No.1 of
2012 (2012) 10 SCC 1: 2012 (9) SCR 311 - referred to.
G
Roper vs. Simmons 543 US 551 (2005) and Graham vs
Florida 560 us 48 (201 O) - referred to.
Case Law Reference:
(2013) 3 SCALE 1 referred to Para 13
H
288 ·SUPREME COURT REPORTS [2014] 9 S.C.R.
A 1983 (2) SCR 690 distinguished Para 15
(2000) 8 sec 437 distinguished Para 15
(2013) 4 sec 105 referred to Para 15
1989 (2) SCR 1005 referred to Para 20
B
2012 (9) SCR 311 referred to Para 20
543 us 551 (2005) referre,d to Para 32
560 us 48 (2010) referred to Para 32
c
2005 (2) SCR 576 followed Para 39
1990 (1) Suppl. SCR 142 relied on Para 42
1974 (3) SCR 121 relied on Para 44
D 1988 (3) Suppl. SCR 253 relied on Para 44
1994 (2) SCR 375 relied on Para 44
2004 (2) SCR 224 relied on Para 44
E · 2010 (2) SCR 860 relied on Para 44
2010 (14) _SCR 873 relied on Para 44
CRMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 695 of2014
F
From the Judgment and Order dated 23.01.2013 of the
High Court of Delhi at New Delhi in WPCRLA No. 124 of 2013.
WITH
G W P. (Crl.) No. 204 of 2013.
Sidharth Luthra, Rakesh Khanna, ASGs, Anooop G.
Chaudhari, Dr. Rexna Swamy, Dr. Aman Hingorani, Priya
' Hingorani, Dr. Shweta Hingorani, Hingorani & Associates,
H Yogmaya Agnihotri, Seema Rao, Supriya Juneja, Harsh
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 289
JUVENILE JUSTICE BOARD
Prabhakar, Mohit Nagar, Sushma Suri, B. Krishna Prasad, A A
J. Bhambhani, Nisha Bhambhani, A. K. Asthana, Apurv
Chandola, Sudarsh Menon, Mohit Abraham, Bhanudey Kanwar,
Arvind Kr. Ray, A. K. Singh, for the appearing parties, Dr.
Subramanian Swamy, Supriya Manan, lshkaran S. Bhandari.
Amod Kr. Kanth and Madhukar Sharma, Appellants-in-Person
B
The Judgment of the Court was delivered by
RANJAN GOGOi, J.
SLP (Crl.) No.1953 of 2013
c
1. On 16th December, 2012 a young lady (23 years in age)
and her friend were returning home after watching a movie in
a multiplex located in one of the glittering malls of Delhi. They
boarded a bus to undertake a part of the journey back home.
While the bus was moving, 5 persons brutally assaulted the D
young lady, sexually and physically, and also her friend. Both
of them were thrown out of the bus. The young lady succumbed
to her injuries on 29.12.2012.
2. Five persons were apprehended in connection with the E
crime. One of them, identified for the purpose of the present
case as Raju, was below 18 years of age on the date o.f
commission of the crime. Accordingly, in compliance with the
provisions of the Juvenile Justice Act, 2000 (as amended and
hereinafter referred to as 'the Act') his case was referred for F
inquiry to the Juvenile Justice Board. The other accused were
tried in a regular sessions court and have been found guilty,
inter alia, of the offences under Section 376 (2){g) and Section
302 of the Indian Penal Code, 1860 (for short "the Penal
Code"). They have been sentenced to death by the learned trial
court. Their appeal against the aforesaid conviction and the G
sentence imposed has since been dismissed and the death
penalty has been confirmed by the High Court of Delhi.
3. Before the Juvenile Justice Board to whom the case of
290 SUPREME COURT REPORTS [2014) 9 S.e:-R.
A Raju was referred for inquiry, the petitioners had filed
applications for their impleadment to enable ·them to
'prosecute' the juvenile alon{Jsi<W the public prosecutor. The
petitioners also claimed that, on a proper interpretation of the
Act, the juvenile was not entitled to the benefits under the Act
B but was liable to be tried under the penal law of the land in a
regular criminal court alongwith the other accused.
4. According to the petitioners, after an elaborate hearing,
the Board had fixed the case on 25.01.2013 for pronouncement
of order on the question of maintainability of the application filed
C by the petitioners and also on their prayer for impleadment.
However, insofar as the interpretation of the provisions of the
Act for determination bf the question whether the offence(s)
allegedly committed by the juvenile is to be inquired into by the
Board or the juvenile is required to be tried in a regular criminal
D court is concerned, the Board had expl'i:!ssed its inability to
decide the same and had directed the petitioners to seek a
authoritative pronouncement on the said issue(s) from the High
Court.
E 5. Accordingly, the petitioners had instituted a writ
proceeding before the High Court of Delhi, which was
registered as Writ Petition {Crl.) No. 124 of 2013, seeking the
following reliefs :-
"i. Laying down an authoritative interpretation of
F Sections 2(1) and 2(k) of the Act that the criterion
of 18 years set out therein does not comprehend
cases grave offences in general and of heinous
crimes against women in particular that shakes the
root of humanity in general.
G
ii. That the definition of offences under Section 2(p)
of the Act be categorized as per grievousness of
the crime committed and the threat of public safety
and order.
H
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 291
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
iii. That Section 28 of the Act be interpreted in terms A
of its definition, i.e., alternative punishment and
serious offences having minimum punishment of
seven years imprisonment and above be brought
outside its purview and the same should bf; tried
by an ordinary criminal court. B
. . j .
iv. Incorporating in the Act, the International concept'
of age of criminal responsibility and diluting the
blanket immunity provided to the juvenile offender
on the basis of age.
c
v. That the instant Act be read down in consonance
with the rights of victim as protected by various
fundamental rights including Article 14 and 21 of
the Constitution of ln(iia'." (sic) ..
D
6. The High Court by its order dated 23.01.2013
'dismissed the writ petition holding that against the order of the
Juvenile Justice Board the alternative remedies available under
the Act should be exhausted in the first instance and in the
course thereof the question of interpretation of the provisions E
of the Act can well be considered.
7. On the very next day, the Board'by an elaborate order
dated 24.01.2013 rejected the prayer of the petitioners for
impleadment in the proceeding against the delinquent and
seeking participation therein. in the aforesaid circumstances, F
on 19.02.2013, Special Leave Petition (Crl.) No.19~3 of 2013
was lodged before this Court challenging the aforesaid order
of the High Court of. Delhi.
8. The maintainability of the Special [eave Petition was G
seriously disputed by the respondent No.1 i.e. juvenile Raju as
well as the Union of India. In support, it was, inter alia,
contended that the administration of criminal justice. in India
does not envisage the role of a third party/stranger. Primarily,
it is the State which is entrusted with the duty of prosecution in H
292 SUPREME COURT REPO~TS [2014] 9 S.C.R.
A the discharge of which a limited role so far as the complainant/
first informant of arjoffence is concerned and that too in
specified situatio~,' is contemplated by the provisions of the
Code of Crimina,l;.Procedure. The preliminary objection of the
respondents to the.fnaintainability of the Special Leave Petition
B was heard at lengtlpby,this Court and by order.dated
22.08.2013 it was held as follows:
"All that the petitioners seek is an authoritative
pronouncement Of the true purport and effect of the
different provisions of the JJ Act so as to take a juvenile
c out of the purview of the· said Act in case he had
committed an offence, which, according to the petitioners,
on a true interpretation of Section 2(p) of the Act, is
required to be identified and distinguished to justify a
separate course of action, namely, trial in a regular Court
D of law as a specific offence under the Penal Code and
in accordance with the provisions of the Code of Criminal
Procedure. The adjudication that the petitioners seek
clearly has implications beyond the case of the first
respondent and the proceedings in which he is or may :
E be involved. In fact, interpretation of the relevant
provisions of the JJ Act in any manner by this Court, if
made, will not be confined to the first respondent alone
but will have an effect on all juveniles who may come into
conflict with law both in the immediate and distant future.
F If we are to view the issue of maintainability of the present
proceeding from the aforesaid perspective reference to
the Ca$e of the first respondent in the pleadings must be
understood to f?e illustrati.ve. If this Court is to interpret
the provisions of the Act in the manner sought by the
G petitioners, the possible effect thereof in so far as the first
Respondent is concerned will pale into insignificance in
the backdrop of the far reaching consequences that such
an interpretation may have on an indeterminate number
of persons not presently qefore the Court. We are,
H therefore, of the view that it would be appropriate for us)
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 293
,JUVENILE JUSTICE BOARD [RANJAN qOGOI, J.]
hold that the special leave petition dees not suffer from A
the vice of absence of locus on the part of the petitioners
so as to render the same not maintainable in law. We,
therefore, will proceed to hear the special Jsave petition
on merits and attempt to provide an answer to the several
questions raised by the pfJtftioners before us," (sic) s
9. Notice in the special leave petition was accordingly
issued in response to which detailed counter affidavit has been
filed on behalf of the Union as well as the respondent-juvenile
Raju. In addition, Crl. Misc. Petition No.22586/2013 (by Smt. C
June Chaudhari, Senior Advocate), CrL Misc. Petition
No.25075/2013 (on behalf of Centre for Child and the Law,
National Law School of India University and Ors.), Crl. Misc.
Petition No.15792/2013 (on behalf of Prayas Juvenile Aid
Centre, Tughlakabad, Institutional Area, New Delhi) and Crl.
Misc. Petition No.23226/2013 (by Dr. Madhuker Sharma) for D
interventions have been filed, all of which have been allowed.
The matter was elaborately heard on different dates by this
Court in the course of which written notes and arguments as
well as documents relevant to the issues have been placed
before the Court by the contesting parti~s. In view of the E
elaborate consideration on the basis of the arguments
advanced and the materials placed we deem it proper to grant
leave to appeal and to decide the case on merits upon full
consideration of the rival contentions.
F
Writ Petition (Crl.) No.204 of 2013
10. This writ petition has been filed by the. parents of the
victim of the incident that had occurred on 16.12.2012 seeking
· the following reliefs :
G
"(i) a Direction striking down as unconstitutional and void
the Juvenile Justice (Care and Protection of Children) Act
2000 (Act No.56 of 2000) to the extent it puts a blanket
ban on the power of the criminal courts to try a juvenile
H
294 SUPREME CQURT REP.ORTS [2014) 9 S.C.R.
A offender for offences committed under the Indian Penal
Code, 1860; and
(ii) a Direction that the Respondent No.2 be tried forthwith
by the competent criminal court for the offences against
the daughter of the petitioners in F.l.R. No.413112, P.S.
B
Vasant Vihar, New Delhi under sections 30213651
376(2)G/377!307/ 394/395!3~7139614121201! 1208134
/PC."
11. The issues raised being similar to those arising in
C Special Leave Petition (Crl.) No.1953 of 2013, both cases
were heard together and 'are being disposed of by means of
this common order.
12. We liave heard Dr. Subramanian Swamy, the first
D appellant appearing in person and also representing the other
appellants as well as Dr. Aman Hingorani, learned counsel
appearing on behalf of the petitioners in W.P. (Crl.) No.204 of
2013. We have also heard Shri Sidharth Luthra, learned
Additional Solicitor General, appearing for the Union of India
E and Shri A.J. Bhambhani, learned counsel appearing for the
juvenile respondent No.1-Raju apart from the intervenors
appearing in person or through their respective counsels.
13. Dr. Subramanian Swamy has, at the outset, clarified
that he is neither challenging the provisions of Section 2(k) and
F 2(1) of the Act nor is he invoking the jurisdiction of the Court to
strike down any other provision of the Act or for interference of
the Court to reduce the minimum age of juveniles fixed under
the Act as 18· years. Wliat Dr. Swamy has contended is that
having regard to the object behind the enactment, the Act has
G to be read down to· understand that the true test of "juvenility"
is not in the age but in the level of mental maturity of the
offender. This, it is contended, would save the Act from
unconstitutionality and also further its purpose. The Act is not
intended to apply to serious or heinous crimes c~mmitted by
H a juvenile. The provisions of Sections 82 and 83 of the Indian
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 295
JUVENILE JUSTICE BOARD (RANJAN GOGOi, J.]
Penal Code have been placed to contend that while a cfiiid A
below 7 cannot be held to be criminally liable, the criminality of
those between 7 and 12 years has to be judged by the level of
their mental maturity. The same principle would·apply to all
children beyond 12 and upto 18 years also, It is contended. This
is how the two statutes i.e. Indian Penal Code and the Act has B
to be harmoniously understood. The provisiol)s of Section 1(4)
of the Act which makes the provisions of the Act applicable to
all cases of detention, prosecution and punishment of juveniles
in conflict with law, to the exclusion of all other laws, would be
unconstitutional if the Act is not read down. Specifically, Dr. c
Swamy contends that in that event the Act will offend Article 14 ·
of the Constitution as all offenders below the age of 18 years
irrespective of the degree/level of mental maturity and
irrespective of the gravity of the crime committed would be
treated at par. Such a blanket treatment of all offenders below D
the age of 18 committing any offence, regardless of the
seriousness and depravity, is wholly impermissible under our
constitutional scheme. the non-obstante provi~ions contained
in Section 1(4) of the Act as well as the bar imposed by Section
7 on the jurisdiction of the criminal court to try juvenile offenders
cannot apply to serious and heinous crime committed by E
juvenHes who have reached the requisite degree of mental
maturity, if the Act is to maintain its constitutionality. Reliance
Is· also placed on Essa @ Anjum Abdul Razak Memon vs.
State of Maharashtra 1 to contend that the purport and effect of
Section 1(4) of the Act must be understood in a limited manner. F
14. By referring to t,he provisions of the United Nations
Standard Minimllm Rules for the Administration of Juvenile
Justice, 1985. (Beijing Rules); t~e Convention of the Rights of
the Child, 1990 (CRC) and the LJnited Nations Rules for the G
Protection of Juveniles Deprived of their Liberty, 1990(Havana
Rules), Dr. Swamy ha's contended that the international
commitments entered into by India obliges it to set up a
1. (2013) 3 SCALE 1. H
296 SUPREME COURT REPORTS [2014] 9 S.C.R.
A particular framework to deal with juvenile offenders and such
obligations can be more comprehensively met and effectuated
by understanding the Act in the aforesaid manner. The practice
in vogue in several foreign jurisdictions, particularly, in the U.K.,
.USA and Canada for adjudicating criminal liability of young
8 offenders has also been placed before ~he C.o.urt. Specifically,
it is pointed out that. the practice of statutory exclusion which
ensures that perp'etratot'.is of certain grave offences are
prosecuted as adults; 'judicial waiver', granting discretion to
special juvenile courts fo waive jurisdiction and transfer the
C juvenile's case to an ordinary court of law and also the policy
of concurrent jurisdiction of botfl the ordinary and juvenile courts
giving discretion to the prosecutor to initiate proceedings in the
more suitable court are followed in such jurisdictions. Shri
Swamy has also- suggested that Section 28 of the Act be read
together with Section 15 to enable the alternatively higher
0
punishment under other State/Central enactments, such as the
IPC to be awarded to a juvenile offender. It is argued that this
would incorporate the policy of concurrent jurisdiction of both
ordinary criminal courts and JJ Boards.
E 15. Legislative overreach in enacting the Act is the core
argument advanced on behalf of the petitioners in Writ Petition
(Crl.) No.204 of 2013. Dr. Aman Hingorani, learned counsel
urges that the ban on jurisdiction of criminal courts by Section
7 of the Act is unconstitutional inasmuch as it virtually ousts the
F criminal justice system from dealing with any offence committed
by a juvenile. Parliament cannot make a law to oust the judicial
function of the courts or even judicial discretion in a matter: which
falls within the jurisdiction of the courts. Reliance in this regard
is placed on the judgments of this Court in the case of Mithu
G Vs. State of Punjab 2 and Dadu Vs. State of Maharashtra3 • It
is argued that what the Actc;:ontemplates in place of a regular
criminal trial is a non-adversarial inquiry against the juvenite
where the prime focus is not on the crime committed but on
2. (1983) 2 sec 277.
H 3. (2000) a sec 437.
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 297
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.].
the reasons that had led the juvenile to such conduct. The A
maximum power of 'punishment', on proof of guilt, is to send
the juvenile to a special home for three years. The entire
scheme under the Act being substantially different from what ·
is provided by the Code of Criminal Procedure for investigation
of offences and for trial and punishment of offenders, it is B
submitted that the Act offends a core constitutional value
namely, the existence of a criminal justice system. The
proceedings against the juvenile Raju held by the JJ Board are,
therefore, null and void and the said juvenile is liable to be tried
by a competent criminal court in accordance with the procedure C
prescribed. In this regard, it is also submitted that the concept
of double jeopardy under Article 20(3) of the Constitution and
Section 300 of Penal Code will have no application inasmuch
.as the proceedings before the JJ Board did/does not amount
to a trial. C0ntentions somewhat similar to what has been D
advanced by Dr. Swamy to explain the degree of constitutional
flexibility that the Act would enjoy has also been urged by Dr.
Hingorani who however goes a step forward to contend that the
decision in Sa/ii Bali vs. Unioif.. f?fJndia 4 will not be an inhibition
for the Court to answer the questiqa(s) raised as not only the
issues arising in Sa/ii Bali (supra) are different but the said E
decision is founded on an entirely different legal perspective.
16. Shri Anoop G. Chaudhary, learned senior counsel
appearing for the intervenor Smt. June Chaudhari and Dr.
Madhuker Sharma, intervenor, appearing in person. have F
supported the case projected by Dr. Swamy and Dr. Aman
Hingorani, noticed above.
17. The arguments advanced on behalf of the appellants
as well as the writ petitioners are hotly contested. Shri Sidharth
Luthra, learned Additional Solicitor General submits that what G
is contemplated by the Act is in furtherance of the country's
obligations arising from a series of international conventions
to which India is a signatory. The Act is an expression of
4. (2013) 4 sec 10s. H
298 SUPREME COURT REPORTS [2014] 9 S.C.R.
A legislative wisdom to treat all persons below 18 as juveniles
and to have an alternate system of dealing with such juveniles
who come into.conflict with law. Shri Luthra has submitted that
the constitutional validity of the Act has been upheld by a
Coordinate Bench in Sa/ii Bali (supra). Shri Luthra has also
8 submitted that psychological/mental, intellectual and emotional
maturity of a person below 18 years cannot be objectively
determined on an individual or case to case basis and the
fixation of the Minimum Age of Criminal Responsibility (MACR)
under the Act is a policy decision taken to give effect to the
C ·country's international commitments. In so far as the specific
contentions advanced on behalf of the writ petitioners in W.P.
(Crl.) No.204 of 2013 is concerned, Shri Luthra has submitted
that the Act does not provide a blanket immunity to juvenile
offenders, as contended. What the Act contemplates is a
different procedure to deal with such offenders. If found guilty,
0 they are subjected to a different scheme of punishment. The
learned counsel appearing on behalf of the juvenile Raju, while
supporting the contentions advanced by Shri Luthra, has further
submitted that the United Nations Convention on the Rights of
the Child, 1990 read with the concluding Resolution of the
E Committee on Child Rights (constituted under the UN
Convention) of the year 2000 qua India and the General
Resolution of the year 2007 clearly contemplate the MACR as
18 years and mandates member States to act accordingly.
Learned counsel on the strength of the elaborate academic and
F research work placed on record has tried to persuade the Court
to take the view _that :-
(1) Countries like U.K. Canada and USA have
departed from the obligations under the UN
G Convention and are in breach of their international
commitments. The incidence of crime by juveniles
in those countries is very high which is not so in
India. It is submitted that, of late, a re-thinking on
the issue is discernible to demonstrate which
reliance is placed on some recent pronouncements
H
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 299
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
of the US Supreme Court, details of which will be A
noticed hereinafter.
(2) That the level qf mental/intellectual maturity in any
given case cannot be determined with any degree
of accuracy and precision and the results vary from
B
case to case and from individual to individual. A
system which provides for an option to refer a
juvenile to a regular court, therefore, ought not to be
accepted as no objective basis for such reference
exists.
c
18. Shri Amod Kanth, representing Prayas Juveniles Aid
Centre and learned counsel for the intervener Centre for Child
and the Law, National Law School of India University and
others have supported the stand taken, by the learned
Additional Solicitor General. Elaborate written submissions D
have been filed to substantiate the argument that having regard
to expert/psychological/medical opinion' available the MACR
cannot be determined, with any acceptable degree of precision,
on the basis of a case to case study for which reason the
legislative wisdom inherent in the Act must be accepted and E
respected. Statistics of the crimes (Crime rate) corrffnitfed by
juvenile offenders have also been brought on record to contend
that the beneficial nature of the legislation does not call for any
relock, even on the touchstone of Gonstitutional permissibility.
19. At the very outset, two initial hurdles to the present
F
adjudication, set up by the respondents, may be, conveniently
dealt with. The first is that the constitutional validity of the Act
has been upheld in Sa/if Bali (supra) and it is not necessary to
revisit the said decision even if it be by way of a reference to
a larger Bench. The second is with regard to t_he G
recommendations of the Justice J.S. Verma Committee
following whictl recommendations, the Criminal Law
Amendment Act, 2013 has been enacted by the legislature
fundamentally altering the jurisprudential norms so far as
H
300 SUPREME COURT REPORTS [2014) 9 S.C.R.
A offences against women/sexual offences are concerned.
20. In Safi/ Bali (supra) the constitutional validity of the Act,
particularly, Section 2(k) and 2(1) thereof was under challenge,
inter alia, on the very same grounds as have now been
B advanced before us to contend that the Act had to be read
down.In Salil Bali (supra) a coordinate Bench did not consider
it necessary to answer the specific issues raised before it and
had based its conclusion on the principle of judicial restraint
that must be exercised while examining conscious decisions
that emanate from collective legislative wisdom like the age of
C a juvenile.,Notwithstanding the decision of this Court in Kesho
Ram and 'others Vs. Union of lndia 5 and Others holding that,
"the binding effect of a decision of this Court does not depend
upon whether a particular argument was considered or not,
provided the point with reference to which the argument is
D advanced subsequently was actually decided in the earlier
decision ... " (para 10) the issue of res judicata was not even
remotely raised before us. In the field of public law and
or
particularly when constitutional issue~, matters of high public
interest are involved, the said princfpte would operate in a
1
E somewhat limited manner; in any case, the petitioners in the
pres~nt proceeding were not parties to the decision rendered
in Safi/ Bali (supra). Therefore, we deem it proper to proceed,
not to determine the correctness of the decision in Salil Bali
(supra) but to consider the arguments raised on the point of law
F arising. While doing so we shall certainly keep in mind the
course of action that judicial drscipline would require us to
adopt, if 'need be. Though expressed in a somewhat different
context we may remind ourselves of the observations of the
Constitution Bench of this Court in Natural Resources
G Allocation, In Re, Special Reference No.1 of 20126 extracted
below:-
"48. 2. The second limitation, a self-imposed rule of
5. (1989) 3 sec 151.
H e. (2012) 10 sec 1.
DR._ SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 301
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
judicial discipline, was that overruling the opinion of the A
Court on a legal issue does not constitute sitting in
appeal, but is done only in exceptional cirCU('1$tances~
such as when the earlier decision -is- per 1r1"6ufiam or is
delivered in the absenee of reTe'llaf)f or material facts. or
if it is manifestly wroiig and capable of causing public B
. • ' • r mischief. For this proposition, the Court relied upon the
judgment in Bengal Immunity case (AIR 1955 SC 661)
wherein it was held that when Article 141 lays down that
the law declared by this Court shall be binding on all
courts within the teriitory of India, it quite obviously refers C
to courts other than this Court; and that the Court would
normally follow past precedents save and except where
it was necessary to reconsider the correctruu;s of law laid
down in that judgment. lnJact, th'e overr<J;Jling of a
principle of law is not an outcome of appellatf;:jurisdiction D
but a consequence of its inherent power. ·ThJs, inherent
power can be exercised as lo11g as a previous ·decree vis-
. a-vis a /is inter partes is not affected. It is the '~ttiirppt to
overturn the .decision of a previous case ·tHat is
problematic, which is why the Court observed that:
[Cauvery (2) case' (1993 Supp (1) SCC 96 (2), SCC p. E
145, para 85] I
"85. ... Under the ·constitution such appellate jurisdiction
does not vest in this Court, nor can it be vested in it by
the President under Article 143. " -. F
21. The issues arising and the contentions advanced
therefore will have to be examined from the aforesaid limited
·perspective which we are inclined to do in view of the
importance of the questions raised.
G
22. The next issue that would need a resolution at the
threshold is the effect of the recommendations of the Justice
J.S. Verma Committee constituted by the Government of India
by Notification dated 24th December, 2012 following the very
same incident of 16th December 2012 so far as the age of a H
302 SUPREME COURT REPORTS [2014] 9 S.C.R.
A juvenile is concerned. Th~ terms of reference to the Justice J.S.
Verma Committee were indeed wide and it is correct that the
Committee did not recommend reduction of the age of juveniles
by an amendment of the provisions of the Act. However, the
basis on which the. Committee had come to the above
B conclusion is vastly different from the issues before this Court.
The recommendations of the Justice J.S. Verma Committee
which included the negative covenant so far as any amendment
to the JJ Act is concerned was, therefore, in a different context
though we must hasten to add the views expressed would
C undoubtedly receive our deepest consideration while dealing
with the matter in hand ..
23. The stage is now appropriate to have a look at the
international conventions, holding the field, to which India has
been a signatory ..
D
The UN Standard Minimum Rules for the Administration
of Juvenile Justice ("the Beijing Rules") were adopted by the
General Assembly of the United Nations in 1985. Rule 2.2(a)
defines a juvenile as a child or young person who, under the
E respective legal system, may be dealt with for an offence
differently than an adult. Rule 4.1 set out below mandates
Member States to refrain from fixing a minimum age of criminal
responsibility that is too low, bearing in mind the facts of
emotional, mental and intellectual maturity.
F "4.1 In those legal systems recognizing the concept of the
age of criminal responsibility for juveniles, the beginning of that
age shall not be fixed at too low an age level, bearing in mind
the facts of emotional •. ~ental and intellectual maturity."
G 24. The Beijing Rules take into account penological
objectives in addition to rehabilitation of the offender. In Rule
17.1, the guiding principles of adjudicating matters involving
juveniles are enlisted:
(a) The reaction shall always be proportional to not only
H
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 303
JUVENILE JU8'TICE BOARD [RANJAN GOGOi, J.]
the circumstances and the gravity of the offence, but A
also to the circumstances and needs of the juvenile
as well as to the needs of society;
(b) Restrictions on personal liberty of the juvenile shall
be imposed only after careful. consideration and
B
shall be limited to the possible minimum;
(c) Deprivation of personal liberty shall not be imposed
unless the juvenile is adjudicated of a serious act
involving violence against another person or of
persistence in committing other serious offences C
and unless there is no other appropriate response;
(d) The well-being of the juvenile shall be the guiding
factor while considering his case.
It is clear that the Beijing Rules do not prohibit detention D
of a juvenile if he is proved to have committed a violent, serious
offence, or to have repeatedly committed such serious offences
though Rule 17.2 of the Beijing Rules prohibits the imposition
of capital punishment of juveniles. Thus, the Rules do not
advocate leniency in dealing with such offenders but only E
contemplate that detention be limited to the most serious cases
where no other alternative is found appropriate after careful
consideration.
25. The Convention on the Rights of the Child, 1990 F
("CRC"), in. Article 1, adopts a chronological definition of a
"child", viz. less than 18 years old, unless majority under national
legislation is attained earlier: ·
"For the purposes of the present Convention, a child
means every .human being below the age of eighteen G
years unless under the law applicable to the child,
majority is attained earlier. "
Article 37(a) of the CRC prohibits the imposition of capital
punishment and life imprisonment without possibility of release H
304 SUPREME COURT REPORTS (2014) 9 S.C.R.
A on offenders below 18 years of age. The CRC further obliges
State Parties to estab.lish a minimum age below which children
shall be presumed not to have the capacity to infringe the penal
law (Article 40(3)(a)).
26. Rule 1.2 ·of the Havana Rules provide that a juvenile
8
should be deprived. of his/her liberty only as a measure of the
last resort limited to exceptional cases and for the minimum
necessary period. Even then, detention should be in such a
manner and in conditions that respect the human rights of
juveniles (Rule 12).
c
Rule 11 (a) of tlie Havana Rules',' 1990 define a juvenile
as every person under the age of 18, and allow national laws
to determine a minimum age below which such person will not
be detained.
D
27. Un<ler Article 43 of the CRC, constitution of a
Committee for the purpose of examining the progress made
by the State parties on the ~i~hts of the child is contemplated.
The first meeting of the Committee under Article 44 was to be
E within 2 years of the coming into force of the convention so far
as a particular State party, in respect of whom review of the
progress is made, is concerned. Thereafter, the Committee is
required to meet every 5 years. In January, 2000, the Committee
considered the .initial report of India submitted on 19.03.1997
and adopted certain "concluding observations" the relevant part
F of which are extracted hereinbelow:
"79. The Committee is concerned over the administration
of juvenile justice in India and its incompatibility with
articles 37, 40 and jg of the Convention and other
G relevant international standards. The Committee is also
concerned at the very young age of criminal
responsibility - 7 years - and the possibility of trying boys
between 16 and 18 years of age as adults. Noting that
the death penalty is de facto not applied to persons under
H 18, the Committee is very concerned that de jure, ·this
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 305
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
possibility exists. The Committee is further concerned at A
the overcrowded and unsanitary cooditions of detention
of children, including detention with adults; lack of
application and enforcement of existing juvenile justice
legislation; lack of training for professionals, including the
judiciary, lawyers and law enforcement officers, in relation B
to the Convention, other existing interna1ional standards
and the 1986 Juvenile Justice Act; and the. lack of
measures and enforcement thereof to prosecute officials
who violate these provisions.
80. The Committee recommends that the State party
c
review its laws in the administration of juvenile justice to
ensure that they are in accordance with the Convention,
especially Articles 37, 40 and 39, and other relevant
international standards such as the United Nations
Standard Minimum Rules for the Administration of D
Juvenile Justice (the Beijing Rules), the. µnited Nations
Guidelines for the Prevention of Juvenile Delinquency
(the Riyadh Guidelines), the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty and the
Vienna Guidelines for Action on Children in the Criminal E
Justice System.
81. The Committee recommends that the. State P?rtY
abolish by law the imposition of the death penalty ~~n
persons under 18. The Committee also recommen~s F
that the State party consider raising the age of criminal
responsibility and ensure that persons under 18 years are
not tried as adults. In accordance with the principle of non-
discrimination contained in article 2 of the Convention,
the Committee recommends article 29(h) of the 1986 · G
Juvenile Justice Act be amended to ensure that boys
under 18 years are covered by the definition of juvenile,
as girls already are. The Comrriitte_e recommends that
the 1986 Juvenile Justice Act be fully enforced and that
the judiciary and lawyers be trained and made aware of H
306 SUPREME ~OURT REPORTS [2014] 9 S.C.R.
A it. The Committee 'further recommends that measures be
taken to reduce overcrowding, to release those who
cannot be given a speedy trial and to improve prison
facilities as quickly as possible. The Committee
recommends that the State party ensure regular, frequent
B and independent monitoring of institutions for juvenile
offenders."
It i~ pursuant to the aforesaid concluding observations of
the Committee made in the year 2000 that the JJ Act was
C amended in the later part of that year by having a uniform age
of 1'8 for both male and female juveniles.
28. It needs to be clarified that the concluding observations
of the Committee under Article 45 of the UN Convention (CRC)
are qua a p,articular State party whereas general comments of
D the Committee under the same Article are authoritative
interpretations addressed to all State parties. The above
distinction between "concluding observations" and "general
comments" is highlighted to draw attention to the fact that in
the meeting of the Committee held in Geneva in the year 2007 ·
E certain general observations with regard to MCAR of 18 years
were made which would be applicable to State parties other
than India as the law had already been amended in our country
pursuant to the concluding observations made by the
Committee in the year 2000 specifically qua India. The views
F of the Committee in respect of other member States may be
usefully taken note at this stage by extracting the
recommendations in the nature of gerteral comments in paras
36, 37 and 38 of the Report:
"36. The Committee also wishes to draw the attention of
G States parties to the upper age-limit for the application
of the rule$ of juvenile justice. These special rules - in
terms b.oth of special procedural rules and of rules for
diversion and special measures - should apply, starting .
at the MACR set in the country, for all children who, at
H the time of their alleged commission of an offence (or act
DR. ~UBRAMANIAN SWAMY v. RAJU THR. MEMBER 307
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
punishable under the criminal law), have not yet reached A
the age of 18 years.
"37. The Committee wishes to remind States parties that
they have recognized the right of every child alleged as,
accused of, or recognized as having infringed the penal B
law to be treated in accordance with the provisions of
article 40 of CRC. This means lhat every person under
the age of 18 years at the time of the alleged commission
of an offence must be treated in accordance with the rule.s
of juvenile justice.
c
"38. The Committee. therefore. recommends that those
States parties which limit the app/icabilitv of their juvenile
justice rules to children under the age of 16 (or lower) ·
years. or which allow by way of exception that 16 or 17-
year-old children are treated as adult criminals. change D
their laws with a view to achieving a non-discriminatorv
full application of their juvenile justice rules to all persons
under the age of 18 years. The Committee notes with
appreciation that some States parties allow for the
application of the rules and regulations of juvenile justice E
to persons aged 18 and older, usually till the age of 21,
either as a general rule or by way of exception."
(emphasis added)
29. Both sides have laboured to assist the Court with F
elaborate and detailed scientific and medical literature in
support of their respective stands. The scientific and medical
opinion on the issue is not at variance and it cannot be. The
difference lies in the respective ·perceptions as we will presently
see. The works and opinions placed goes to show that studies G
of adolescent brain anatqmy clearly indicate that regions of the
brain that regulate such things as foresight, impulse COJ1trol and
resistance to peer pressure are in a developing stage upto the
age of 18. These ·are normative phenomenon that a teenager
cannot control and not a pathological illness or defect. An article H
308 SUPREME COURT REPORTS [2014] 9 S.C.R.
A by Laurence Steinberg & Laura H. Carnell titled "Should the
Science of Adolescent Brain Development inform Public
Policy" is relied upon. On the basis of the above it is contended
that there is no answer to the question when an adolescent brain
becomes an adult brain because the structural and
B conventional changes do not take place on a uniform time
scale. It is further· argued that intellectual maturity of an
adolescent is different from emotional or social maturity which
makes an adolescent mature for some decisions but not for
others, a position also highlighted by the Act which pre-
C supposes the capacity of a child under 18 to consent for his
adoption under Section 41 (5) of the Act. On the said materials
while the petitioners argue that the lack of uniformity .of mental
growth upto the relevant age i.e. 18 years would justify
individualized decisions rather than treating adolescent as a
class the opposite view advanced is thatbetween the lower and
0
the upper age, the age of 18 provides a good mid point of focus
which may result in some amount of over-classification but that
would be inevitable in any situation and a mid point reduces
the chances of over-classification to the minimum. These are
the varying perceptions alluded to earlier.
E
30. It may be advantageous to now take note of the Juvenile
Justice System working in other jurisdictions.
A· CANADA
F In Canada, the Youth Criminal Justice Act, 2002
provides for criminal justice to young persons aged between
12 to 18 years. The Preamble expressly states that the Act was
enacted pursuant to.Canada's obligations under the CRC. The
Preamble also declares that "Canadian society should have a
G youth criminal justice system that commands respect, takes into
account the interests of victims, fosters responsibility and
ensures accountability through meaningful consequences and
effective rehabilitation and reintegration, and that reserves its
most serious intervention for the most serious crimes and
H
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 309
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
reduces the over-reliance on incarceration for non-violent young A
persons." (emphasis added)
While a 'child' is a person aged less than 12 years, a
'young person' is one aged between ·12 and 18 years. Section
13 establishes "youth justice courts" which have exclusive
8
jurisdiction to try offences committed by a young person. The
Act makes special provisions where a young person commits
a "serious offence" (indictable offence punishable with more
than 5 years' imprisonment) and "serious violent offence" (first
and second degree murder, manslaughter, aggravated sexual
assault, attempted murder). Custody sentences are reserved C
for violent and serious crimes, but cannot exceed the maximum
punishment that can be awarded to adults for the same offence
(Section 38(2)(a)). One sentencing option is the "Intensive
Rehabilitative Custody and Supervision Order", which is
reserved for serious violent offenders including for aggravated D
sexual assault. When the offender attains 18 years, the Court
may place him in an adult correctional centre if this is in his best
interest or in public interest. /
Section 34 permits the Youth Justice Court to order for the E
mental and psychological assessment of the young person
for the following reasons only:
a. Considering an application for release from or
detention in custody;
F
b. Deciding on an application for hearing the offender
on adult sentence;
c. Making or reviewing a youth sentence;
d. Considering an application relating to continuation G
of custody;
e. Making an order for conditional supervision;
H
310 SUPREME COURT REPORTS [2014] 9 S.C.R.
A f. Authorizing disclosure of information about a young
person.
Fu"rther, assessment may be ordered only where (i) the
offender has committed a serious violent crime, or (ii) the Court
suspects he is suffering from a mental illness or disorder; or
8
(iii) the offender has a criminal history with repeated findings
of guilt. Thus, an assessment under Section 34 cannot be
ordered for determining whether the offender lacks sufficient
"maturity" to be classified as a "juvenile/young person" (and
thus qualify for the benefits of the Act). This Act, like the JJ Act
C uses the chronological test for determining its beneficiaries.
However, in cases of serious and serious violent crimes, the
offender may be punished by the Youth Justice Court with
equivalent years of imprisonment as in the case of ah adult
(Sections 38 & 39).
D
In its concluding remarks on Canada (dt. 05.10.2012), the
Committee on Rights of the Child expressed concern that the
State had taken no steps to raise the MACR and continued to
try children under 18 as adults (in relation to the circumstances
E or gravity of the offence). Besides recommending the increase
in MACR, the Committee also recommended that the State i.e.
Canada to ensure that no person under 18 is tried as an adult
irrespective of the circumstances or the gravity of the offence 7 .
8 • UNITED KINGDOM
F
31. Children less than 10 years of age are irrefutably
considered as incapable of committing an offence. Children
between 10-18 years are capable of committing offences, but
are usually tried in the Youth Court, unless they have committed
G serious offences (such as rape or homicide) or have been
charged with adults (co-defendants), in' which case they are
tried in the Crown Court. When jointly charged with adult co-
defendants, though the charges must be framed in the
7. Committee on the Rights of the child, 61" Section, 05 October 2012, CRC/
H C/CAN/C0/3-4, paras 85-86, p.20.
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 311
JUVENILE JUSTICE BOARD [RANJAN GOGOi, >J.]
Magistrate's court with the other defendants, the juvenile should A
be sent to the Crown Court for trial if there is a "real prospect"
of him being sentenced to over 2 years' custody period.
The general policy of law in the UK is (i) juveniles under
18 years, especially under 15 years, shoOld be tried as far as B
possible by the Youth Court, reserving trial in the Crown Court
for serious cases, and (i~) first time offenderS aged 12-14 years
and all offenders under 12 years should not be detained in
custody.
Sentencing: "Detention and Training Orders" may be given C
to an offender aged 12-17 years, the first half of which is served
in qustody and the second half is served in the community.
These usually last between 4 months and 2 years.
"E~tended" custodial sentences are given to young D
persons if their crime is so serious that no other alternative is
suitable, or if the young person is a habitual offender, or if the
Judge thinks the person is a risk to public safety. Under S.91
of the Powers of Criminal <;:ourts (Sentencing) Act, 2000, a
person below 18 years who is convicted of a serious offence,
E
may be sentenced to a period not exceeding the maximum term
of imprisonment for adults, including life. The place of detention
is a young offender institution. The Sentencing Guidelines .
provide that a sentence exceeding 2 years in respect of youth
aged 12-17 years and accused of a grave offence should be
made only when such a sentence is a "realistic possibility". F
Instances of such offences include sexual assault. Where a
person is convicted of murder, he must be sentenced to
detention at Her Majesty's pleasure.
C - UNITED STATES OF AMERICA G
32. The US has a relatively high rate of juvenile
delinquency. In 2011, the number of juvenile delinquents was
129,456 out of a population of 250 million. Although the
H
312 SUPREME COURT REPORTS [2014) 9 S.C.R.
A traditional age of majority is 18 years, nearly all States permit
persons less than 18 years to be tried as adults.
For example, in California, the majority age is 18 years,
but persons older than 14 years may be tried as adults if they
commit serious crimes (rape, robbery, murder etc.). The state
8
of New York pegs the age of juvenility at 16 years, and permits
the prosecution of persons aged between 13-16 years as adults
in case of serious crimes. In Florida, the prosecutor has
discretion to decide whether to try the juvenile as such or as
C an adult, owing to concurrent jurisdiction of the juvenile and
ordinary criminal courts.
There are three legal mechanisms that permit the juvenile
to be tried as an adult in the States:
D i. Judicial Waiver: The juvenile judge has the
discretion to waive jurisdiction and transfer the case '
to the adult criminal courts. Presently, all states
except Nebraska, New York, and New Mexico, ·
provide for judicial waiver. This discretion is entirely
left to the Judge in some States, whereas others
E
provide some criteria for its exercise. In Breed v.
Jones (1975), the Court held that adjudicating a
juvenile first in a juvenile court, which subsequently
waived jurisdiction, followed by adjudication by an
adult court, violated the Fifth Amendment protection
F against double jeopardy.;
ii. Prosecutorial Discretion : Where the prosecutor
has the discretion to decide whether to try- the
offender in a juvenile or adult criminal court. This is
G most common in cases of repeat offenders;
iii. Statutory exclusion: Where State legislation
provides that the youth be tried as an adult, based
on factors such as the gravity of the offence, prior
criminal record, age of the youth etc.
H
DR. SUBRAMANIAN SWAMYv. RAJU THR. MEMBER 313
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
iv. Blended Sentencing: A juvenile court may sentence A
a convicted juvenile offender to both a juvenile
sentence and an adult sentence. The adult sentence
is suspended on the condition that the juvenile
offender successfully completes the term of the
juvenile disposition and refrains from committing any B
new offence. For example, juvenile courts in the
State of Texas may award up to 40 years' sentence
to offenders.
The trial procedure and sentencing principles applicable C
to adults are equally applicable in case a person under 18 years
is transferred to an adult criminal court. Juveniles cannot,
however, be sentenced to death (Roper v. Simmons 8) or
imprisoned for life without possibility of parole (Graham v.
Florida 9).
D
D - BRAZIL
33. The Statute of the Child and the Adolescent, 1990,
enacted in compliance with the CRC, treats persons below 18
years (but above 12 years) as adolescents. 'Councils of E
Guardianship', municipal tribunals comprising five locally elected
members, deal with cases involving preadolescents (younger
children). Juvenile Courts deal with cases involving older
children. Confinement and incarceration are reserved for older
youths up to the age of 21 years.
F
E - BANGLADESH
. 34. The minimum age of criminal responsibility in
Bangladesh is 9 years (raised from 7 years in 2004). The
Children Act, 1974 defines a child and youthful offem;ler as one G
below 16 years of age.' The Act provides for the establishment
of Juvenile Courts with exclusive jurisdiction to try youthful
offenders (Section 13, Children Act). Ordinary criminal courts
8. 543 us 551 (2005).
9. 560 us 48 (2010). H
314 SUPREME COURT REPORTS [2014) 9 S.C.R.
A may act as Juvenile Courts if the latter are not established.
Procedure under the Criminal Procedure Code, 1898 is
followed. Section 51 prohibits the award of death sentence,
imprisonment and transportation to a youthful offender. The
proviso to this sectiotl provides for situations (serious crimes
B or where the juvenile is so unruly or depraved) permitting the
Court to sentence him to imprisonment. However, the period of
imprisonment cannot exceed the period of maximum
punishment for adults. It appears that life imprisonment may be
awarded in these exceptional cases to juveniles.
c F - AFGHANISTAN
35. The Juvenile Code sets the minimum age of criminal
responsibility at 12 years. A child is defined as a person below
18 years of age. Trial of children in conflict with the law is
D conducted by dedicated Juvenile Courts. Juvenile offenders are
prosecuted by special 'Juvenile Prosecutors'.
Sentences of death and life imprisonment cannot be
awarded. to juveniles. For juveniles aged between 12-16 years,
E 1/3rd of the maximum punishment to adults can be awarded.
For juveniles aged between 16-18 years, % of the maximum
punishment to adults can be awarded.
G - BHUTAN
F 36. The minimum age of criminal responsibility is 10
years. Although not expressly defined, a juvenile is understood
as a person below 18 years of age. Bhutan does not possess
a special legislation dealing with juvenile offenders; there are
no specialized Juvenile courts either. Section 213 of the Civil
G and Criminal Procedure Code has certain provisions regulating
the trial of a juvenile offender. Persons below 18 years can be
awarded half of the adult sentence.
H - NEPAL
H 37. The minimum age of criminal responsibility is 10
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 315
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
years. A child is a person below·16 years. Youth between 16- A
18 years are charged and tried as adults.
38. The next significant aspect of the case that would
require to be highlighted is the differences in thejuvenile justice
system and the criminal justice system working in India. This
8
Would have relevance to the arguments made in W.P. No.204
of 2013. It may be convenient to notice the differences by means
· of the narration set out hereinunder:
Pre-trial Processes
c
Filing of FIR:
Criminal Justice System: The system swings into action
upon receipt of information (oral or written) by the officer in
charge of a police station with regard to the commission of a
cognizable offence.
0
JJ System: Rule 11 (11) of the JJ Rules, 2007 states that
the Police are not required to file an FIR or a charge-sheet while
dealing with cases of juveniles in conflict with the law. Instead,
•.
they must only record the information of the offence in the E
general daily diary, followed by a report containing the social
background of the juvenile, circumstances of the apprehension
and the alieged offence.
An FIR is necessary only if the juvenile has (l1 allegedly F
committed a serious offence like rape or murder, or (ii) has
allegedly committed the offence with an adult.
Investigation and Inquiry:
Criminal Justice System: Ss. 156 and 157, CrPC deals G
with the power and procedure of police to investigate cognizable
offences. The police may examine witnesses and record their
statements. On completion of the investigation, the police officer
is required to submit a Final Report to the Magistrate u/s 173(2).
H
316 SUPREME COURT REPORTS [2014] 9 S.C.R.
A JJ System: The system contemplates tne immediate
production of the apprehended juvenile before the JJ Board,
with little scope for police investigation. Before the first hearing,
the police is only required to submit a report of the juvenile's
social background, the circumstances of apprehension and the
B alleged offence to the Board (Rule 11 (11 )). In cases of a non-
serious nature, or where apprehension of the juvenile is not in
the interests of the child, the police are required to intimate his
parents/guardian that the details of his alleged offence and his
social background have· been submitted to the Board (Rule
c 11 (9)).
Arrest
Criminal Justice System: Arrest of accused persons is
regulated under Chapter V of the CrPC. The police are
D empowered to arrest a person who has been accused of a
cognizable offence if the crime was committed in an officer's
presence or the police officer possesses a reasonable
suspicion that the crime was committed by the accused. Further,
arrest may be necessary to prevent such person from
E committing a further crime; from causing disappearance or
tampering with evidence and for proper investigation (S.41).
Persons accused of a non-cognizable offence may be arrested
only with a warrant from a Magistrate (S.41 (2)).
JJ System: The JJ Rules provide that a juvenile in conflict
F with the law need not be apprehended except in serious
offences ent~iling adult punishment of over 7 years (Rule 11 (7)).
As soon as a juvenile in conflict with the law is apprehended,
the police must inform the designated Child/Juvenile Welfare
Officer, the parents/guardian of the juvenile, and the concerned
G Probation Officer (for the purpose of the social background
report) (S.13 & R.11(1)). The juvenile so apprehended is placed
··in the charge of the Welfare Officer. It is the Welfare Officer's
duty to produce the juvenile before the Board within 24 hours
(S. 10 & Rule 11(2)). In no case can the police send the
H
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 317
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
juvenile to lock up or jail, or delay the transfer of his charge A
to the Welfare Officer (proviso to S.10 & R.11(3)).
Bail
Criminal Justice System: Chapter XXXlll of the CrPC
provides for bails and bonds. Bail may be granted in cases of B
bailable and non-bailable offences in accordance with Ss. 436
and 437 of the CrPC. Bail in non-bailable offences may be
refused if there are reasonable grounds for believing that the
peTson is guilty of an offence punishable with death or
imprisonment for life, or if he has a criminal history (S.437(1)). C
JJ System: A juvenile who is accused of a bailable ornon-
bailable offence "shall" be released on bail or placed under the
care of a suitable person/institution. This is subject to three
exceptions: (i) where his release would bring him into 0
association with a known criminal, (ii) where his release would
expose him to moral, physical or psychological danger, or (iii)
where his release would defeat the ~nds of justice. Even where
bail is refused, the juvenile is to be kept in an observation home
or a place of safety (and not jail).
E
Trial and Adjudication
The trial of an accused under the criminal justice system
is governed by a well laid down procedure the essence of which
is clarity of the charge brought against the accused; the duty F
of the prosecution to prove the charge by reliable and legal
evidence and the presumption of innocence of the accused.
Culpability is to be determined ori the touchstone of proof
beyond reasonable doubt but if convicted, punishment as
provided for is required to be inflicted with little or no exception. G
The accused is entitled to seek an exoneration from the
charge(s) levelled i.e. discharge (amounting to an acquittal) mid
course.
JJ System: Under S.14, whenever a juvenile charged with
an offence is brought before the JJ Board, the latter must H
318 SUPREME COURT REPORTS [2014] 9 S.C.R.
A conduct an 'inquiry' under the JJ Act. A juvenile cannot be tried
with an adult (S.18).
Determination of the age of the juvenile is required to be
made on the basis of documentary evidence (such as birth
B certificate, matriculation certificate, or Medical Board
examination).
The Board is expected to conclude the inquiry as soon as
possible under R. J3. Further, the Board is required to satisfy
itself that the juvenile has not been tortured by the police or any
C other person and to take steps if ill-treatment has occurred.
Proceedings must be conducted in ~he simplest manner and a
child-friendly atmosphere must be maintained (R.13(2}(b)), and
tne juvenile must be given a right to be heard (clause (c)). The
inquiry is not to be conducted in the spirit of adversarial
D proceedings, a fact that the Board is expected to keep in mind
even in the examination of witnesses (R.13(3)). R.13(4)
provides that the Board must try to put the juvenile at ease while
examining him and recording his statement; the Board must
encourage him to speak without fear not only of the
E circumstances of the alleged offence but also hjs home and
social surroundings. Since the ultimate object of the Act is the
rehabilitaticn of the juvenile, the Board is not merely concerned
with the allegations of the crime but also the underlying social
causes fo~ the same in order to effectively deal with such
F causes.
The Board may dispense with the attendance of the
juvenile duri!'lg the inquiry, if thought fit (S. 47). Before the Board
conclud~s on the juvenile's involvement, it must consider the
social investigation report prepared by the Welfare Officer
G (R.15(2)).
The inquiry must not prolong beyond .four months unless
the Board extends the period for special reasons due to the
circumstances of the case. In all non-serious crimes, delay of
H more than 6 months will terminate the trial (R.13(7)).
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 319
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
Sentencing: The Board is empowered to pass one of the A
seven dispositional orders u/s 15 of the JJ Act: advice/
admonition, group counseling, community service, payment of
fine, release on probation of good conduct and placing the
juvenile under the care of parent or guardian or a suitable
institution, or sent to a Special home for 3 years or less. Where s
a juvenile commits a serious offence, the Board must report the
matter to the State Govt. who may keep the juvenile in a place
of Safety for not more than 3 years. A juvenile cannot be
sentenced to death or life imprisonment.
Post-trial Processes c
JJ System: No disqualification attaches to a juvenile who
is found to have committed an offence. The records of his case
are removed after the expiry of period of appeal or a reasonable
period. D
S. 40 of the JJ Act provides that the rehabilitation and
social reintegration of the juvenile begins during his stay in a
children's home or special home. "After-care organizations"
recognized by the State Govt. conduct programmes for taking E
care of juveniles who have left special homes to enable them
to lead honest, industrious and useful lives.
Differences between JJ System and Criminal Justice
System ·
F
1. FIR and charge-sheet in respect of juvenile
offenders is filed only in 'serious cases', where adult
punishment exceeds 7 years.
2. A juvenile in conflict with the law is not "arrested", G
but "apprehended", and only in case of allegations
of a serious crime.
3. Once apprehended, the police must immediately
place such juvenile under the care of a Welfare
Officer, whose duty is to produce the juvenile before H
320 SUPRE:ME COURT REPORTS [2014] 9 S.C.R.
A the Board_. Thus, the police do not retain pre-trial
custody over the juvenile.
4. Under no circumstances is the juvenile to be
detained in a jail or police lock-up, whether before,
during.or after the-Board inquiry.
B
5. Grant of Bail to juveniles in conflict with the law is
the Rule.
6. The JJ board conducts a child~jriendly "inquiry" and
c not an adversarial trial. This is not to say that the
nature of the inquiry is non-adversarial, since both
prosecution and defence submit their cases.
Instead, the nature of the proceedings acquires a
child-friendly colour.
D 7. The emphasis of criminal trials is to record a finding
on the guilt or innocence of the accused. In case
of established guilt, the prime object of sentencing
is to punish a guilty offender. The emphasis of
juvenile 'inquiry' is to find the guilUinnocence of the
E juvenile and to investigate the underlying social or
familial causes of the alleged crime. Thus, the aim
of juvenile sentencing is to reform and rehabilitate
the errant juvenile.
F 8. The adult criminal system does not regulate the
activities of the offender once s/he has served the
sentence. Since the JJ system seeks to reform and
rehabilitate the juvenile, it establishes post-trial
avenues for the juvenile to make an honest living.
G 39. Having laid bare all that is necessary for a purposive
adjudication of the issues that have been raised by the rival
camps we may now proceed to examine the same.
The Act, as manifestly clear from the Statement of Objects
H and Reasons, has been enacted to give full and complete
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 321
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
effect to the country's international obligations arising from India A
being a signatory to the three separate conventions delineated
hereinbefore, namely, the Beijing Rules, the UN Convention and
the Havana Rules. Notwithstanding the avowed object of the Act
and other such enactments to further the country's international
commitments, all of such laws must necessarily have to conform B
to the requirements of a valid legislation judged in the context
of the relevant constitutional provisions and the judicial verdicts
rendered from time to time. Also, that the Act is a beneficial
piece of legislation and must therefore receive its due
interpretation as a legislation belonging to the said category c
has been laid down by a Constitution Bench of this Court in
Pratap Singh vs. State of Jharkhand and Another 10 . In other
words, the Act must be interpreted and understood to advance
the cause of the legislation and to confer the benefits of the
provisions thereof to the category of persons for whom the
0
legislation has been made.
40. Dr. Swamy at the outset has urged that there is no
attempt on his part to challenge the constitutional validity of the
Act, particularly, the provisions contained in Sections 2(k) and
2(1) of the Act and what he seeks is a mere reading down of E
the Act. It is not very difficult to understand the reason for the
argument; Dr. Swamy seeks to overcome what he perceives
to be a bar to a direct challenge on ·account of the decision of
this Court in Safi/ Bali (supra). But if the argument advanced if
is to be carried to the fullest extent the implication is obvious. F
If the Act is not to be read down, as urged, it will stand
invalidated on grounds of unconstitutionality. The argument,
therefore, is really the other side of the same coin which has
been cast by Dr. Hingorani who is more forthright in his
challenge to the validity of the Act on the twin grounds already G
noticed, namely, that the Act would result in over-classification
if all juveniles, irrespective of the level of mental maturity, are
to be grouped in one class and on the further ground that the
1o. (2005) 3 sec 551. H
322 SUPREME COURT REPORTS (2014) 9 S.C.R.
A Act replaces the criminal justice system in the country a;id
therefore derogates a basic feature of the Constitution. If the
arguments are to be understood and examined from the
aforesaid perspective, the conclusion is obvious - what the
Court is required to consider, apart from the incidental and side
B issues which would not be of much significance, is whether the
Act would survive the test of constitutionality if the same is not
to be read and understood in the manner urged. Of course, if
the constitutionality of the Act is to become suspect, the further
question, as we have already indicated, is what should be the
c course of action that would be open to this Coordinate Bench
in view of the decision in Safi/ Bali (supra).
41. Dr. Swamy would urge that the relevant prpvisions of
the Act i.e. Sections 1(4), 2(k), 2(1) and 7 must be read to mean
that juveniles (children below the age of 18) who are
D intellectually, emotionally and mentally mature enough to
understand the implications of their acts and who have
committed serious crimes do not come under the purview of
the Act. Such juveniles are liable to be dealt with under the penal
:aw of the country and by the regular hierarchy of courts under
E the criminal justice system administered in India. This is what
was intended by the legislature; a plain reading, though, shows
an unintended omission which must be made up or furnished
by the Court. It is further urged that if the Act is not read in the
above manner the fall out would render the same in br~ch of
F Article 14 as inasmuch as in that event there would be a blanket/
flat categorisation of all juveniles, regardless of their mental and
intellectual maturity, committing any offence, regardless of its
seriousness, in one homogenous block in spite of their striking
dissimilarities. This, Dr. Swamy contends, is a classification
G beyond what would be permissible under Article 14 in as much
as the result of such classification does not further the targeted
object i.e. to confer the benefits of the Act to persons below 18
who are not criminally responsible in view of the low level of
mental maturity reached or achieved. This, in substance, is also
H the argument of Dr. Hingorani, who, in addition, has contended
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 323
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
that the Act replaces the criminal justice system of the. country A
by a scheme which is not even a poor substitute. The
substituted scheme does not even remotely fit with constitutional
tapestry woven by certain basic features namely the existence
of a criminal justice system.
8
42. Reading down the provisions of a statute cannot be
resorted to when the meaning thereof is plain and unambiguous
and the legislative intent is clear. The fundamental principle of
the "reading down" doctrine can be summarized as follows.
Courts must read the Jegislation literally in the first instance. If
on such reading and understanding the vice of C
unconstitutionality is attracted, the courts must explore whether
there has been an unintended legislative omission. If such an
intendment can be reasonably implied without undertaking what,
unmistakably, would be a legislative exercise, the Act may be
read down to save it from unconstitutionality. The above is a D
fairly well established and well accepted principle of
interpretation which having been reiterated by this Court time
and again would obviate the necessity of any recall of the huge
number of precedents available except, perhaps, the view of
Sawant, J. (majority view) in Delhi Transport Corporation vs. E
D. T. C. Mazdoor Congress and Others 11 which succinctly sums
up the position is, therefore, extracted below.
"255. It is thus clear that the doctrine of reading down or
of recasting the statute can be applied in limited F
situations. It is essentially used, firstly, for saving a statute
from being struck down on account of its
unconstitutionality. It is an extension of the principle that
when two interpretations are possible - one rendering it
constitutional and the other making it unconstitutional, the G
former should be preferred. The unconstitutionality may
spring from either the incompetence of the legislature to
enact the statute or from its violation of any of the
provisions of the Constitution. The second situation which
11. 1991 Supp. (1) sec 600. H
324 SUPREME COURT REPORTS [2014] 9 S.C.R.
A summons its aid is where the provisions of the statute
are vague and ambiguous and it is possible to gather
the intentions of the legislature from the object of the
statute, the context in which the provision occurs and the
purpose for which it is made. However, when the provision
B is cast in a definite and unambiguous language and its
intention is clear, it is not permissible either to mend or
bend it even if such recasting is in accord with good
reason and conscience. In such circumstances, it is not
possible for the court to remake the statute. Its only duty
is to strike it down and leave it to the legislature if it so
c desires, to amend it. What is further, if the remaking of
the statute by the courts is to lead to its distortion that
course is to be scrupulously avoided. One of the
situations further where the doctrine can never be called
into play is where the statute requires extensive additions
D and deletions. Not only it is no part of the court's duty to
undertake such exercise, but it is beyond its jurisdiction
to do so."
43. In the present case there is no difficulty in
E understanding the clear and unambiguous meaning of the
different provisions of the Act. There is no ambiguity, muchless
any uncertainty, in the language used to convey what the
legislature had intended. All persons below the age of 18 are
put in one class/group by the Act to provide a separate scheme
F of investigation, trial and punishment for offences committed
by them. A class of persons is sought to be created who are
treated differently. This is being done to further/effectuate the
views of the international community which India has shared
by being a signatory to the several conventions and treaties
G already referred to.
44. Classification or categorization need not be the
outcome of a mathematical or arithmetical precision in the
similarities of the persons included in a class and there may
be differences amongst the members included within a
H
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 325
JUVENILE JUSTICE BOARD [RANJAN GOGOf, J.]
particular class. So long as the broad features of the A
categorization are identifiable and distinguishable and the
categorization made is reasonably connected with the object
targeted, Article 14 will not forbid such a course of action. If the
inclusion 6f all under 18 into a class called 'juveniles' is
understood in the above manner, differences inter se and within B
the under 18 category may exist. Article 14 will, however,
tolerata the said positio11. Precision and arithmetical accuracy
will not exisUn any categorization. But such precision and
accuracy is n'ot what Article 14 contemplates. The above
principles have been laid down by this Court in a plethora of c
judgments and an illustrative reference to some may be made
by recalling the decisions in Murthy Match Works and Others
vs. The Asstt. Collector of Central t;xcise and Another 12,
Roop Chand Adlakha ·and Others vs. Delhi Development
Authority and Others 13, Kartar Singh vs. State of Punjab 14,
0
Basheer alias N.P. Basheer vs.State of Kerala 15 , B. Manmad
Reddy and Others vs. Chandra Prakash Reddy and Others 16
, Transport and Dock Workers Union and Others vs. Mumbai
Port Trust and Another17•
45. If the provisions of the Act clearly indicate the legislative E.
intent in the light of the country's international commitments and
the same is in conformity with the constitutional requirements,
it is not necessary for the Court to understand the legislation in
any other manner. In fact, if the Act is plainly read and
understood, which we must do, the resultant effect thereof is F
Wholly consistent with Article 14. The Act, therefore, need not
be read down, as suggested, to save it from the vice of
unconstitutionality for such unconstitutionality does not exist.
12. (1974) 4 sec 428. G
13. 1989 supp (1) sec .116.
14. (1994) 3 sec 569.
15. (2004) 3 sec 609.
\
16. c2010) 3 sec 314.
17. c2011) 2 sec 575. H
326 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 46. That in certain foreign jurisdictions, details of which
have been mentioned earlier to bring .about clarity and
completeness to the issues arising, the position is otherwise
would hardly be of any consequence so far as our country is
concerned. Contrary international opinion, thinking or practice,
B even if assumed, does not dictate the legislation of a sovereign
nation. If the legislature has adopted the age of 18 as the
dividing line between juveniles and adults and such a decision
is constitutionally permissible the enquiry by the Courts must
come to an end. Even otherwise there is a considerable body
c of world opinion that all under 18 persons ought to be treated
as juveniles and separate treatment ought to be meted out to
them so far as offences committed by such persons are
concerned. The avowed object is to ensure their rehabilitation
in society and to enable the young offenders to become useful
members;bf the society in later years. India has accepted the
0
above position and legislative wisdom has led to the enactment
of the JJ Act in its present form. If the Act has treated all under
18 as a separate category for the purposes of differential
treatment so far as the commission of offences are concerned,
we do not see how the contentions advanced by tne petitioners
E . to the contrary on the strength of the thinking and practices in
other jurisdictions can have any relevance.
47. In the earlier paragraphs of this report we have
analyzed in detail the difference between the crimina~ jl,l,stice
F system and the system for dealing with offenders under the JJ
Act. The Act does not do away or obliterate the enforcement
of the law insofar as juvenile offenders are concerned. The
same penal law i.e. Indian Penal Code apply to all juveniles.
The- only difference is that a different scheme for trial and
G punishment is introduced by the Act in place of the regular
··,
provisions· under the Gode of Criminal Procedure for trial of
offenders and the punishments under the Indian Penal Code .
.The abpve situatjon is vastly different from what was before the
C,QW,t in Mithu (supra) and also in Dadu (supra). In Mithu
H (supra) a seifarate-treatment of the accused found guilty of a
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 327
JUVENILE JUSTICE BOARD [RANJAN, GOGOi, J.]
second incident of murder during the currency of the sentence A
for an earlier offence of murder was held to be impermissible
under Article 14. Besides the absence of any judicial discretion,
whatsoever, in the matter of imposition of sentence for a second
Act of murder was held to be "out of tune" with the constitutional
philosophy of a fair, just and reasonable law. On the other hand B
in Dadu (supra), Section 32A of the NDPS Act which had
ousted the jurisdiction ·of the Court to suspend a sentence
awarded under the Act was read down to mean that the power
of suspension, notwithstanding Section 32A of the NDPS Act,'
can still't~e exercised by the appellate court but subject to the c
conditions stipulated in Section 37 namely (i) there are
reasonable grounds for believing that·the accused is not guilty
of such offence; and (ii) that he is not likely to commit any ·
offence while on bail are satisfied. Nothing as sweeping and
as drastic in Mithu (supra) and Dadu (supra) has been
D
introduced by the provisions of the Act so as to enable us to
share the view expressed by Dr. Hingorani that the Act sets at
naught all the essential features of the criminal justice system
and introduces a scheme iNhich is abhorrent to our
constitutional values. Having taken the above view, we do not
E
consider it necessary to enter in the consequential arena,
namely, the applicability of the provisions of Article 20(3) of the
Constitution and Section 300 of the Code of Criminal
Procedure to the facts of the present case as on th~ view that
we have taken no question of sending the juvenile - Raju to face
a regular trial can and does arise. F
48. Before parting; we would like to observe that elaborate
statistics have been laid before us to show the extent of serious
crimes committed by juveniles and the increase in the rate of
such crimes, of late. We refuse to be tempted to enter into the G
said arena which is primarily for the legislature to consider.
Courts must take care not to express opinions on the· sufficiency
or adequacy of such figures and should confine its scrutiny to
the legality and not the necessity of the law to be made or
continued. We would be justified to recall the observations of H
328 .SUPREME COURT REPORTS [2014] 9 S.C.R.
A Justice Krishna Iyer in Murthy March Works (supra) as the
present issues seem to be adequately taken care of by the
same:
"13. Right at the threshold we must warn ourselves of the
8 limitations of judicial power in this jurisdiction. Mr Justice
Stone of the Supreme Court of the United States has
delineated these limitations in United States v. Butler
(1936) 297 US 1 thus:
"The power of Courts to declare a statute
c unconstitutional is subject to two guiding
principles of decision which ought never to be
absent from judicial consciousness. One is that
Courts are concerned only with the power to enact
statutes, not with their wisdom. The other is that
D while unconstitutional exercise of power by the
executive and legislative branches of the
government is subject to judicial restraint, the only
check upon our exercise of power is our own sense
· of self-restraint For the removal of unwise laws
E from the statute books appeal lies not to the
Courts but to the ballot and to the processes of
democratic Government."
14. In short, unconstitutionality and not unwisdom of a
legislation is the narrow area of judicial review. In the
F present" case unconstitutionality Js alleged as springing
from lugging together two dissimilar categories of match
manufacturers into one compartment for like treatment.
15. Certain principles which bear upon classification may
G be mentioned here. It is true that a State may classify
persons and objects for the purpose of legislation and
pass la.ws for the purpose of obtaining revenue or other
objects. Every differentiation is not a discrimination. But
classification can be sustained only if it is founded on
H pertinent and real differences as distinguished from
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER 329
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
·-
irrelevant and artificial ones. The constitutional standard A
bv which the sufficiency of the differentia which form a
valid basis for classification may be measured. has been
repeatedly stated by the Courts. If it rests on a difference
which bears a fair and iust relation to the object for which
it is proposed. it is constitutional. To put it differently, the B
means must have nexus with the ends. Even so, a large
latitude is allowed to the State for classification upon a
reasonable basis and what is reasonable is a question
of practical details and a variety of factors which the Court
will be reluctant and perhaps ill-equipped to investigate. c
In this imperfect world perfection even in grouping is an
ambition hardly ever accomplished. In this context, we
have to remember the relationship between the
legislative and judicial departments of Government in the
determination of the validity of classification. Of course,
0
in the last analysis Courts possess the power to
pronounce on the constitution.ality of the acts of the other
branches whether a classification is based upon
substantial differences or is arbitrary, fanciful and
consequently illegal. At the same time, the question of
classification is primarily for legislative judgment and E
ordinarily does not become a judicial question. A power
to classify being extremely broad and based on diverse
considerations of executive pragmatism. the Judicature
cannot rush in where even the Legislature warily treads.
All these operational restraints on judicial power must F
weigh more emphatically where the subject is taxation."
(Emphasis is ours)
49. On the above note we deem it appropriate to p~ut with G
the cases by dismissing the appeal filed by Dr. Subramanian
Swamy and Others as well as the writ petition filed by the
parents of the unfortunate victim of the crime.
Bibhuti Bhushan Bose Appeal & Writ Petition dismissed.
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