CRIMINAL LAW

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Rethinking Juvenile Justice: Arnit Das style
by Prof. B.B. Pande*

Cite as : (2000) 6 SCC (Jour) 1

Ever since the 1920s, when as a sequel to the Indian Jail Committee (1919-20) recommendations, comprehensive Children Acts were first enacted in the Provinces of Madras (1920), Bengal (1922) and Bombay (1924), the twin concepts of "juvenile delinquency" and "juvenile justice" have gone through a constant process of evolution and refinement. That is the reason why today we can identify with a fair degree of certitude certain core notions and ideas as the distinguishing features of the Indian juvenile justice system, which are used as a touchstone for internal as well as transnational evaluations. Such core notions undergo changes through a process of conscious law reforms, which includes both legislative as well as judicial reforms. But, at times, we do encounter thought currents that run counter to the settled notions and tend to unsettle the accepted meanings and understandings. Arnit Das v. State of Bihar1 is a recent Supreme Court ruling that has the potential of unsettling many concretized notions and ideas of the Indian juvenile justice system. In the following pages we attempt to understand the ruling and trace out its immediate and far-reaching implications.

Arnit Das, a youth on the borderline of childhood and adulthood, was involved in a murder. On the basis of his statement under Section 164 of the Code of Criminal Procedure, in which it was claimed that on the day of the incident he was 13 days short of 16 years, Arnit was remanded to a juvenile home. The prosecution disputed the age claim and got the matter referred to an inquiry in terms of Section 32(1) of the Juvenile Justice Act, 1986. The finding of the inquiry was that Arnit was above 16 years on the day of the alleged incident and, thus, not entitled to a trial as a juvenile. In appeal and revision, the age and the jurisdictional finding of the ACJM were upheld by the Sessions Court as well as the High Court. The petitioner came to the Supreme Court by way of a leave to appeal.2 The Supreme Court framed the following two issues for consideration:

1. For determining the juvenile status, at what point of time is the age to be taken into account?

2. Whether in the present case the finding as to age is sustainable?

The appeal in the present case had only a few contestable facts, particularly in view of the three concurrent findings of the ACJM, the Sessions Court and the High Court relating to the second issue. These categorical findings read in the light of the mandatory nature of Section 32(2), which imparts finality and conclusivity to a duly conducted age determination finding, should have been ordinarily enough to decide the appeal. But it is interesting that the Court seems to have sidelined the issue by devoting less than six lines in disposing of it.3 Instead the Court remained obviously preoccupied in resolving the first issue and expounding a new and alternative juvenile justice philosophy.

I. The point of time for determining juvenile status

In this regard the Arnit decision of Justice R.C. Lahoti (for K.T. Thomas, J. and himself) has ruled as follows:

"We are, therefore, clearly of the opinion that the procedure prescribed by the provisions of the Act has to be adopted only when the competent authority finds the person brought before it or appearing before it to be under 16 years of age if a boy and under 18 years of age if a girl on the date of being so brought or such appearance first before a competent authority. The date of the commission of offence is irrelevant for finding out whether the person is a juvenile within the meaning of clause (h) of Section 2 of the Act. If that would have been the intendment of Parliament, nothing had prevented it from saying so specifically."4(emphasis supplied)

"The legislative aims and objectives set out in the earlier part of this judgment go to show that this legislation has been made for taking care of the care and custody of a juvenile during investigation, inquiry and trial, i.e., from the point of time when the juvenile is available to the law administration and justice delivery system; it does not make any provision for a person involved in an offence by reference to the date of its commission by him."5 (emphasis supplied)

"Prima facie, we feel that the view which we have taken would create no difficulty even in assigning a meaning to the term 'juvenile' as occurring in Chapter VI (Sections 41 to 45) of the Act because a juvenile covered by any of these provisions is likely to fall within the definition of 'neglected juvenile' as defined in clause (l) of Section 2 who shall also have to be dealt with by a Juvenile Board under Chapter III of the Act and the view taken by us would hold the field there as well. ... So far as the present context is concerned we are clear in our mind that the crucial date for determining the question whether a person is a juvenile is the date when he is brought before the competent authority."6 (emphasis supplied)

The conclusions of the Court, it appears, are based on, first, a factual premise, and, second, a philosophical premise. The factual premise arises from an understanding of the existing legislative and judicial guideline on the point.

(i) Legislative guidelines

The Court has observed:

"It is pertinent to note that neither the definition of juvenile nor any other provision contained in the Act specifically provides the date by reference to which the age of a boy or a girl has to be determined so as to find out whether he or she is a juvenile or not."7

True there is no express provision in the Act for identifying the point of time with reference to which the age issue is to be resolved. With deference, it may be submitted that though there is no express provision but the most pertinent legislative guideline could have been found in Section 2(e) that defines a "delinquent juvenile" in these terms: "... means a juvenile who has been found to have committed an offence". (emphasis supplied) How can a person be found to have committed an offence in reference to a future date when he is produced before a competent authority? On the contrary in Arnit the Additional Solicitor General impressed the Court to locate the legislative guideline in Section 32(1), which appears to have found favour with the Court, thus:

"The use of the word 'is' at two places in sub-section (1) of Section 32 of the Act read in conjunction with 'a person brought before it' also suggests that the competent authority is required to record the finding by reference to an event in praesenti before it, i.e., by reference to the date when the person is brought before it and not by reference to a remote event i.e. the date on which the offence was committed."8

With due deference it is submitted that Section 32(1) and (2) is an auxiliary provision that merely lays down the procedure for age determination proceedings and a built-in presumption for imparting finality and conclusivity to the finding. The procedure laid down in Section 32(1) requires, first, that the competent authority should satisfy itself that the person brought before it is prima facie a juvenile, second, it should call for evidence regarding the age, and, third, it should record a finding either positive or negative regarding juvenile status, along with its assessment of the age. Since all these aspects of inquiry are to be made in the context of limited age determination proceeding the legislative use of the present tense should not be understood to mean anything more. The age determination inquiry is not an end in itself. It is held in respect of a delinquent conduct, which is the sine qua non, even for the earlier proceedings like apprehension, investigation, remand and committal.9 Therefore, with due respect, to delink age determination inquiry from the remote incident of the commission of the offence is neither legislatively ordained nor jurisprudentially justifiable.

(ii) Judicial guidelines

In response to the plea of the counsel of the appellant that the judicial authority favoured deciding juvenile status in reference to the date of commission of offence the Court held:

"[I]n none of the cases the specific issue - by reference to which date (the date of the offence or the date of production of the person before the competent authority), the court shall determine whether the person was a juvenile or not, was neither raised nor decided."10

Related to the above issue, there are two kinds of judicial authorities. First, cases in which age issue was adverted to directly or expressly, and, second, cases in which age issue was involved impliedly or indirectly. The first category of cases are again divided into those cases in which the Supreme Court and the High Courts have favoured the appellants' line of argument11 and the cases which take the opposite line12.

In Umesh Chandra v. State13 the Supreme Court while dealing with a pari materia statute, the Rajasthan Children Act, observed: "[T]he relevant date for applicability of the Act so far as the age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial."14 The above categorical ruling of the Supreme Court appears to have missed the attention of the learned counsel as well as the Supreme Court. Thus, being a two-Judge Bench decision, the ruling in Arnit1 is per incuriam.

Furthermore, though the learned Court has considered Santenu Mitra v. State15 ruling not relevant for the issue involved in the present case, with due deference, the following observation of the Court deserves consideration: "We are of the view that the High Court fell in error in not holding the appellant to be below 16 years of age on the date of the commission of the offence."16 (emphasis supplied) Similarly Bhola Bhagat case17 had raised the age issue in a different manner, when the statement of the accused 4 years after the incident was recognised as a basis for the Court to issue direction to hold an age inquiry even after four years. Obviously such age inquiry is not possible if Section 32(1) is understood strictly in the present tense. Dr Justice A.S. Anand (for himself and Justice K. Venkatswami) made the following observation which is very pertinent for the present debate:

"[W]e would like to re-emphasise that when a plea is raised on behalf of an accused that he was a 'child' within the meaning of the definition of the expression under the Act, it becomes obligatory for the court, in case it entertains any doubt about the age as claimed by the accused, to hold an inquiry itself for determination of the question of age.... We expect the High Courts and subordinate courts to deal with such cases with more sensitivity, as otherwise the object of the Acts would be frustrated...."18 (emphasis supplied)

Now if the accused has himself said he was 21 years or 18 years or 17 years, what purpose would be served by an inquiry if the relevant date is when he is produced before a competent authority? The age determination inquiry has meaning only if it relates back to the incident in question.

The number of the Supreme Court and the High Court decisions in support of the view upheld by Arnit are relatively few. In this context Abdul Mannan v. State19 is notable, because it in effect denied juvenile status to persons who were supposed to be themselves responsible for their plight in these words:

"In the facts and circumstances of the case, the benefit of the Central Act was denied to them due to their own act of keeping the trial pending by protracting litigation kept the case pending trial and in the meanwhile the appellants had crossed the age of the juvenile offenders and became adults."20

In Arnit1 also the Court appears to have entertained similar apprehensions of persons evading juvenile justice action till they turn 50 years of age. It would not be surprising if the view in Abdul Mannan19 had influenced the mind of the Judges in Arnit1 (refer to the specific question posed to the appellants' counsel at p. 497, para 17).

There is another line of judicial decisions that incidentally relate to age issue. Particularly notable in this context is the case of Gopinath Ghosh v. State21 in which the Supreme Court remitted a case relating to an incident of August 1974 in November 1983 (after 9 years and 3 months).22 Obviously a case that is remitted for being tried in terms of the juvenile justice jurisdiction, after 7, 8 or even 9 years, has to relate to age when he committed the offence, otherwise how can it be expected that even after 9 years at the time of presentation a person will still be below 16 years? Almost similar logic applies to cases where the juveniles-turned-adults are convicted but their sentence is quashed in terms of the Juvenile Justice Act.23

II. Altering the vision of juvenile justice

Traditionally understood juvenile justice relates to an all-embracing concept that aims at providing, first, an alternative system of justicing, and, second, justice and fairness for the child not only at the trial stage, but also at the investigation, pre-trial custody, bail and remand proceeding stages. However, it appears that the Court is propagating a new vision of juvenile justice in these words:

"The term 'juvenile justice' before the onset of delinquency may refer to social justice; after the onset of delinquency, it refers to justice in its normal juridical sense. ... The Juvenile Justice Act provides for justice after the onset of delinquency. The societal factors leading to the birth of delinquency and the preventive measures which would check juvenile delinquency legitimately fall within the scope of social justice. Once a boy or a girl has assumed delinquency, his or her treatment and trial at the hands of the justice delivery system is taken care of by the provisions of the Juvenile Justice Act."24

This way, the Court has expounded certain new ideas concerning juvenile justice as follows:

(a) There is a distinction between juvenile justice and social justice.

(b) The Juvenile Justice Act is confined to justice after the onset of delinquency.

(c) The pre-delinquency preventive measures and other societal efforts fall within the ambit of social justice.

It is true that conceiving juvenile justice too widely is the main reason for many implementation level flaws and crisis within the juvenile justice system today. This is because, first, it leads to the merger of the two, almost opposed, welfare and justice jurisdictions, second, it generates problems of coordination between the functions of diverse agencies like the police, the adjudicators and the welfare administration and, third, it inhibits specialized approach to the issue. But, with deference, it may be suggested that by arbitrarily demarcating on the basis of pre-onset and post-onset of delinquency or confining strictly to juridical justice or the functions related to justice delivery alone would neither suffice for reinventing new justice system nor afford sufficient motivation to the agencies involved in the task to strive for a coherent child justice policy.25 However, the lead given by the Court deserves a better appreciation and analysis, with a view to its incorporation in the proposed new juvenile justice law.

III. The Recriminalizing implications

The increasing involvement of youth in violence and other forms of serious delinquencies has created pressure for juvenile justice reform that tends to swing in the direction of treating delinquencies more like ordinary crimes or tends to "take delinquency seriously".26 In India too there is a growing thinking amongst law enforcers and policy planners that there is a need to take a tough approach to serious kinds of delinquencies.

Arnit case1 also relates to a violent juvenile crime. Perhaps, that could have been a strong reason for the Court to feel justified in taking an approach that introduces a kind of exclusionary rule. The working of this rule depends upon the time lag between the date of the occurrence and the date of presentation before the competent authority. Greater the time lag, larger the number of persons who will be excluded from juvenile justice jurisdiction. Thus, in a way the Court appears to have invented a kind of waiver device by which the juvenile justice jurisdiction is narrowed down, but in this case, the waiver does not apply only to violent or serious delinquency cases. However, in view of the reality of juvenile justice in most of our States, where juvenile justice is a low priority function, the desirability of such exclusionary rule becomes questionable. In this vein the observation of Justice N.P. Singh in Krishna Bhagwan v. State27 is very pertinent:

"It is a matter of common knowledge especially in the State of Bihar that trial commences in many cases three to five years after the date of the commission of the offence. In the meantime, many accused persons who committed the offences as children cease to be children."28 (emphasis supplied)

How fair would it be, to exclude from juvenile justice jurisdiction, those cases where the delay in presentation was on account of investigatory and prosecuting agencies, either on account of their inefficiency29 or by sheer design? The Court has very emphatically referred to the clever (or foolish?) juvenile who evades arrest and action till he turns 50 years of age, but how do you rule out the possibility of an ignorant and ill-informed juvenile who evades arrest and presentation because he does not understand the implications of it? The possibility of variation in the period of presentation depending upon the State, the region, urban and rural location etc. is likely to introduce arbitrariness in the whole process, which would lead to discrimination between one juvenile and another. Such consequences are likely to be violative of the constitutional guarantee of equality.

In the end, with due deference, it is difficult to agree with the Arnit brand of juvenile justice, which is neither unquestionably sound in law nor unreservedly appealing philosophically.

*   Professor of Law, Faculty of Law, University of Delhi. Return to Text

1. (2000) 5 SCC 488 : 2000 SCC (Cri) 962; hereinafter referred to as Arnit. Return to Text
2. It is notable that in the present case the accused was arrested 8 days after the incident and remanded on the 9th day, and within a little over two years, the ACJM completed the age determination proceedings, the Sessions Court disposed of the appeal, the High Court decided the revision and the Supreme Court dismissed the appeal. Return to Text
3. Arnit, at pp. 500-01. Return to Text
4. Arnit, at p. 497. Return to Text
5. Arnit, at p. 500. Return to Text
6. Ibid. Return to Text
7. Arnit, at p. 494. Return to Text
8. Arnit, at p. 495. Return to Text
9. In Sanjay Suri v. Delhi Admn., 1988 Supp SCC 160 : 1988 SCC (Cri) 248 the Supreme Court directed the Magistrates not to issue warrant of arrest without specifying age and directed the detaining authorities not to execute an order of detention unless the age of the person is mentioned. Return to Text
10. Arnit, at p. 498. Return to Text
11. Umesh Chandra v. State of Rajasthan, (1982) 2 SCC 202 : 1982 SCC (Cri) 396; Gopinath Ghosh v. State of W.B., 1984 Supp SCC 228 : 1984 SCC (Cri) 478; Bhoop Ram v. State of U.P., (1989) 3 SCC 1 : 1989 SCC (Cri) 486; Pradeep Kumar v. State of U.P., 1995 Supp (4) SCC 419 : 1995 SCC (Cri) 395; Bhola Bhagat v. State of Bihar, (1997) 8 SCC 720 : 1998 SCC (Cri) 125; Santenu Mitra v. State of W.B., (1998) 5 SCC 697 : 1998 SCC (Cri) 1381; Also the High Court rulings in Krishna Bhagwan v. State of Bihar, AIR 1989 Pat 217; Bandela Ailaiah v. State of A.P., 1995 Cri LJ 1083 (AP); Mayank Rajput v. State of U.P., 1998 Cri LJ 2797 (All). See also a recent unreported decision of the Supreme Court in Raj Singh v. State of Haryana [now reported at (2000) 6 SCC 759] which relied on Raghbir v. State of Haryana, (1981) 4 SCC 210. Return to Text
12. Sheo Mangal Singh v. State of U.P., 1990 Cri LJ 1698 (All); Abdul Mannan v. State of W.B., (1996) 1 SCC 665 : 1996 SCC (Cri) 197. Return to Text
13. (1982) 2 SCC 202. Return to Text
14. Id., at p. 210. Coram: Murtaza Fazal Ali, D.A. Desai and A. Varadarajan, JJ. Return to Text
15. (1998) 5 SCC 697. Return to Text
16. Id., at p. 698. Return to Text
17. Bhola Bhagat v. State, (1997) 8 SCC 720. Return to Text
18. Id., at p. 729. Return to Text
19. (1996) 1 SCC 665. Return to Text
20. Id., at p. 666. Return to Text
21. 1984 Supp SCC 228. Return to Text
22. Other cases in which the matter is remitted to the lower court after a lapse of time are Sarita Narayan Sawant v. State, 1990 Cri LJ 351 (Bom). Return to Text
23. In Bhoop Ram11 at the time of final decision the juvenile had turned 28 years and in Pradeep Kumar11 the juvenile was already 30 years of age. Return to Text
24. Arnit, at pp. 496-97. Return to Text
25. Incidentally it may be mentioned that the Central Ministry of Social Justice and Empowerment has introduced in the current session of Parliament a new Juvenile Justice Bill that provides for the welfare and the justice jurisdictions in two separate parts. The Bill has proposed to broaden the ambit of welfare jurisdiction and make the justice jurisdiction more punitive and exclusive. Return to Text
26. Particularly notable in this respect are the post-1960 developments in the United States, where the introduction of waiver measures, both legislative and judicial, have enabled the system to divert the selective cases to ordinary criminal courts, by withdrawing the juvenile justice jurisdiction facility. See Simon I Singer: Recriminalizing Delinquency - Violent Juvenile Crime and Juvenile Justice Reform, Cambridge Univ. Press, N.Y. (1996). Return to Text
27. AIR 1989 Pat 217. Return to Text
28. Id., at p. 224. Return to Text
29. Sheela Barse v. Union of India, (1986) 3 SCC 596 : 1986 SCC (Cri) 337 is perhaps the only juvenile delinquency case in which the Supreme Court has stressed the need for having a timebound investigation and trial. Return to Text