Law relating to Children and Juveniles/Case Comments

E-mail this Comments Print Article

SETTING THE JUVENILE JUSTICE COURSE RIGHT: A CRITIQUE OF PRATAP SINGH V. STATE OF JHARKHAND1
by Professor B.B. Pande*

Cite as : (2005) 6 SCC (J) 1

The delinquency and the initial legal proceedings

The appellant Pratap Singh had abducted and murdered by poisoning, in conspiracy with others, the deceased on 31-12-1998. He was arrested and produced before the CJM on 22-11-1999. In response to a petition that on the date of occurrence he was a juvenile in terms of the 1986 Act, the case was transferred to the Juvenile Court. On satisfaction about the age of juvenility on the basis of school certificate the ACJM released the appellant on bail. Aggrieved by the release the informant filed an appeal before the Additional Sessions Judge. The ASJ relied upon Arnit Das v. State of Bihar2 and ordered a fresh enquiry on the issue of age. The appellant preferred a criminal revision before the High Court that again relied upon Arnit Das2 and dismissed the revision. The issue was finally agitated before the Supreme Court, which in view of conflicting rulings in Umesh Chandra v. State of Rajasthan3 and Arnit Das2 referred the matter to a Constitution Bench of five Judges.

The Bench identified the following two questions that awaited an authoritative ruling:

(a) Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced before the court/competent authority.

(b) Whether the Act of 2000 will be applicable to the case where the proceeding is initiated under the 1986 Act and pending when the 2000 Act was enforced with effect from 1-4-2001.

The Constitution Bench of the Supreme Court has elaborately addressed the aforesaid questions in its two separate but concurring judgments of Justice H.K. Sema and Justice S.B. Sinha. Though both the judgments more or less concurred in their conclusions, but their range of arguments and basic thrust varied considerably.

Upholding the Umesh Chandra ruling

The first question formulated by the Constitution Bench in effect relates to choosing between the traditional line of juvenile justice underscored in Umesh Chandra3 and the new and restricted line of juvenile justice propagated by Arnit Das2. The traditional line is premised on a neo-classical assumption about the differential mental and maturity levels of juveniles that requires that criminal behaviour of juveniles ought to be assessed in terms of their diminished capacities and that the diminished capacities must be shown to be at the time of the commission of deviant behaviour, neither before nor after it. As against this, the new line does accept the fact of diminished capacities of juveniles, but on policy grounds takes that into account only at the stage of their production before the adjudicatory authorities, which is recognised as the key institution for giving effect to the aims of securing juvenile justice. This difference in approach between the traditional line and the proposed new line influences the outcomes vitally, namely: the first, relates juvenile justice to its inception, right from the time of its first manifestation but, the second, relates it to the later point of time when the juvenile is brought before the competent authority.

Before adverting to the Supreme Court's reasoning in Pratap Singh1 it may be worthwhile to examine in some detail why the Arnit Das2 ruling evoked a welcome response, though of a limited section of the judiciary4 and academics5 in the short span of five years of its existence.6 There are two prominent reasons for the appeal of Arnit Das.2 First, a growing apprehension that unscrupulous and manipulating parties are taking undue advantage of the juvenile justice jurisdiction benefits.7 Second, the increasing involvement of youth in violent delinquencies, creating a pressure for treating juvenile delinquents on a par with ordinary criminals.8 The Court identified the over-wide conceptualisation of juvenile justice as the main cause for both the ills and saw a narrow and strict conceptualisation a way out of the impasse in these words:

"16. 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. ... the field sought to be covered by the Act is not the one which had led to juvenile delinquency but the field when a juvenile having committed a delinquency is placed for being taken care of post-delinquency."9

The strict and narrow conceptualisation of juvenile justice appears to have appealed to Dr. Chandrashekharan Pillai who in the same vein observes:

"The Act aims at welfare of those who are found to be delinquents and not to all juveniles. ... It seems to have been the general impression shared even by the Supreme Court that age of applicability was to be determined at the stage of commission of delinquent act. The present Bench of the Supreme Court has pried open this impression and argues that this impression has no foundation."10

With respect, it may be submitted that juvenile justice philosophy has a long history and sound basis than the limited language of the provisions of an Act. For instance does the mere change in the language of Section 2(e) in the 1986 Act: "juvenile who has been found to have committed an offence" to Section 2(1) in the 2000 Act: "juvenile who is alleged to have committed an offence" alter the conceptualisation of juvenile justice? Should our understanding of juvenile justice solely depend upon linguistic niceties alone?+

The majority judgment of Justice H.K. Sema has mainly relied upon the three-Judge Bench decision in Umesh Chandra3 which has resolved the relevant date issue in these words:

"Therefore, Sections 3 and 26 became necessary. Both the sections clearly point in the direction of the relevant date for the applicability of the Act as the date of occurrence. We are clearly of the view that the relevant date for applicability of the Act so far as 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."11 (emphasis supplied)

The Court further added:

"20. As already noticed the decision rendered by a three-Judge Bench of this Court in Umesh Chandra3 was not noticed by a two-Judge Bench of this Court in Arnit Das2. We are clearly of the view that the law laid down in Umesh Chandra3 is the correct law and that the decision rendered by a two-Judge Bench of this Court in Arnit Das2 cannot be said to have laid down a good law."12

The majority judgment did not go into the factors that made the Umesh Chandra3 ruling as the "correct law". With respect, is it "correct", merely because it is a three-Judge ruling, which was not noticed by the two-Judge Bench or because it is more in consonance with liability jurisprudence? Liability and accountability whether for deviations by the adults or juveniles is related to the guilty mind and the actus reus at the time of the commission of delinquent conduct.

Justice S.B. Sinha's separate but concurring judgment in Pratap Singh1 does provide a much wider range of arguments for overruling Arnit Das2 and upholding Umesh Chandra3. His well-articulated judgment provides answers to the two questions confronting the Court in the light of crucial themes such as objects of juvenile justice legislations, relevance of the UN Standard Minimum Rules and the relationship between the international juvenile justice laws and the municipal laws. The judgment begins with an overview of the UN Standard Minimum Rules for the Administration of Juvenile Justice, 1985 and the evolution of the standards set by the UN along with their impact on the Acts of 1986 and 2000, followed by a brief account of the salient features of these Acts. Adverting specifically to question (a), relating to the reckoning date in determining the age of the offender, Justice Sinha has observed:

"It must also be borne in mind that the moral and psychological components of criminal responsibility were also one of the factors in defining a juvenile. The first objective, therefore, is the promotion of well-being of the juvenile and the second objective is to bring about the principle of proportionality whereby and whereunder the proportionality of the reaction to the circumstances of both the offender and the offence including the victim should be safeguarded."13

Emphasising the need for definiteness the Court lays down:

"The term 'juvenile' must be given a definite connotation. A person cannot be juvenile for one purpose and an adult for other purpose. It was, having regard to the constitutional and statutory scheme, not necessary for Parliament to specifically state that the age of the juvenile must be determined as on the date of commission of the offence. The same is inbuilt in the statutory scheme."14

Finally, the issue is clinched by the following observation:

"86. The field covered by the Act includes a situation leading to juvenile delinquency vis-...-vis commission of an offence. In such an event he is to be provided the post-delinquency care and for the said purpose the date when delinquency took place would be the relevant date. It must, therefore, be held that the relevant date for determining the age of the juvenile would be one on which the offence has been committed and not when he is produced in court."15

Extending the applicability of the Act of 2000 to proceedings initiated under the Act of 1986

The Juvenile Justice (Care and Protection of Children) Act, 2000 is considered to be more beneficial to the juveniles/children mainly for reasons such as (i) it provides a wider and more inclusive definition of juveniles or children by including within its ambit all persons below the age of 18, thereby, enhancing in case of male juveniles/children the age from 16 to 18 years, (ii) it adds many new classes of vulnerable children to the "child in need of care and protection" category, thereby, bringing much larger section of the child population under the net of the Act, and (iii) it provides for new and specialised dispositional alternatives that are supposed to take better care of the developmental and correctional needs of the juveniles/children. Some of the provisions like Section 20, Section 64 and Sections 3 and 69(2) expressly incorporate these beneficial measures in the Act of 2000.

The most usual cases in which the applicability of the Act of 2000 is sought are those where on the date of the incident the appellant happens to be beyond 16 years, the juvenile age in terms of the Act of 1986, but he is below the age of 18 years before 1-4-2001, thereby, qualifying to be a juvenile in terms of the Act of 2000.16 In this respect the Act of 2000 confers a distinct benefit to the male juveniles of 16 to 18 year age group. The rationale for such a beneficial expansion of the juvenile justice jurisdiction lies in the provision of higher age-limit for both the sexes in the Convention on the Rights of the Child, 1989, which was ratified by the Indian Government in November 1992. The beneficial applicability has been legislatively worked out in the Act of 2000, it can arise in two ways: First, by letting any court other than the Juvenile Court to continue the trial and record conviction, but send the case to the appropriate Juvenile Justice Board for the purpose of sentence in terms of Section 20. Second, in case of 16 to 18 year age group juvenile undergoing any sentence of imprisonment, at the commencement of the Act of 2000 be sent to a special home or a fit institution as required under the new Act, in terms of Section 64.

On the issue of applicability of the Act of 2000 the judgment of Justice Sema has again relied upon earlier authorities such as Bhola Bhagat17, Gopinath Ghosh18, Bhoop Ram19, Pradeep Kumar20 and a recent two-Judge Bench ruling in Upendra Kumar21 In this context the majority judgment simply pointed out the similarities between the Act of 1986 and the Act of 2000 and described:

"Object of the Acts is to provide for the care, protection, treatment, development and rehabilitation of juveniles. The Acts being benevolent legislations, an interpretation must be given which would advance the cause of the legislation i.e. to give benefit to the juveniles."22

Specifically on the issue of applicability to earlier cases the judgment holds that:

"The provisions of the 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1-4-2001."23

However, question (b) is accorded a different kind of resolution by Justice Sinha. According to him Section 20 creates a legal fiction in these words:

"92. Thus, by reason of legal fiction, a person, although not a juvenile, has to be treated to be one by the Board for the purpose of sentencing which takes care of a situation that the person although not a juvenile in terms of the 1986 Act but still would be treated as such under the 2000 Act for the said limited purpose."24

The Court appeared to favour only a limited and strict extension of the 2000 Act in these words:

"By reason of the provisions of the said Act of 2000, the protection granted to a juvenile has only been extended but such extension is not absolute but only a limited one. It would apply strictly when the conditions precedent therefor as contained in Section 20 or Section 64 are fulfilled. ... although it would apply to a person who is still a juvenile having not attained the age of 18 years but shall not apply to a person who has already attained the age of 18 years on the date of coming into force thereof or who had not attained the age of 18 years on the date of commission of the offence but has since ceased to be a juvenile."25

The judgment underscores the two essential conditions for attracting the applicability of Section 20 as: (i) on the date of the coming into force the proceedings against the juvenile were pending before any court, and (ii) on 1-4-2001 the juvenile was below 18 years of age. The Court, with respect, did not elaborate the import of "pending proceedings". Would a proceeding completed in the Juvenile Court, but appealed against on the issue of sentence constitute "pending proceedings" for the purposes of benefits under Section 20? A wider and extended interpretation would benefit a larger number of juveniles, who would otherwise be excluded from the benefits of the Act of 2000. The case of Sudershan Hansda alias Chenchu, one of the juveniles involved in Graham Stains murder, whose appeal against life imprisonment passed by the Juvenile Court four years back can be resolved by applying Sections 20 and 64, treating the appeal proceeding as "pending proceeding". On this issue the Delhi High Court ruling in Charanjeet Singh that was decided over a year before Pratap Singh1 has been more categorical. Justice D.K. Jain (Justice Arjun Sikri concurring) observed in this context as follows:

"It is also axiomatic that the proceedings contemplated in Section 20 mean proceedings either at the stage of trial or appeal and pending in any court, either at the stage of trial or in the court of appeal. Therefore, the intention behind the said provisions is not only to avoid de novo trial of the juvenile but also to cover him under the Juvenile Justice Act even after his conviction and during the period he is undergoing sentence."26

Bringing the Juvenile Justice law in consonance with the Human Rights Standards and the UN Conventional laws

The Pratap Singh1 rulings would be remembered for a long time not for the neat resolution of the two questions underscored by the Court but for its creativity in visualising and drawing linkages between the international Human Rights law, UN Conventional laws and standards and the national laws like the Constitution and the statutory Juvenile Justice laws. Particularly the judgment of Justice S.B. Sinha that has expounded the live linkage between the international and the national juvenile justice regimes admirably well will be much appreciated.27 Therefore, Justice Sinha's ruling has special significance for a juvenile justice judge, lawyer, social activist and academicians equally.

Justice Sinha has prefaced his judgment with an elaborate exposition of the UN Standard Minimum Rules for the Administration of Juvenile Justice, 1985. Underscoring the cruciality of the SMR the Court has observed:

"39. The Juvenile Justice Act in its present form has been enacted in discharge of the obligation of our country to follow the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985...."28

Again in the matter of construction of legislations pertaining to children in a broader frame the Court observed as follows:

"63. The legislation relating to juvenile justice should be construed as a step for resolution of the problem of juvenile justice which was one of tragic human interest which cuts across national boundaries. The said Act has not only to be read in terms of the Rules but also the Universal Declaration of Human Rights and the United Nations Standard Minimum Rules for the Protection of Juveniles."29

In the same vein Justice Sinha's ruling provides a dynamic relationship between the rules of international law and the constitutional law in these words:

"Constitution is a source of, and not an exercise of, legislative power. The principles of international law whenever applicable operate as a statutory implication but the legislature in the instant case held itself bound thereby and, thus, did not legislate in disregard of the constitutional provisions or the international law as also in the context of Articles 20 and 21 of the Constitution. The law has to be understood, therefore, in accordance with the international law. Part III of our Constitution protects substantive as well as procedural rights. Implications which arise therefrom must effectively be protected by the judiciary."30

Adverting further to the growing internationalisation of the constitutional interpretation the Court observes:

"67. Now, the Constitution speaks not only 'to the people of India who made it and accepted it for their governance but also to the international community as the basic law of the Indian nation which is a member of that community'. Inevitably, its meaning is influenced by the legal context in which it must operate."31

Justice Sinha's initiatives would certainly go a long way in conveying a message that the Indian juvenile justice system must comply with the universally recognised and international standards. That in matters of administering juvenile justice the nation States are not at liberty to conjure its own and archaic juvenile justice system, merely on grounds of their peculiar needs and aspirations.

Children's right perspective still remains underemphasised

Despite Justice Sinha's significant initiative in bringing home the international and the UN perspectives in the Indian Juvenile Justice law, with great respect, it may be pointed out that the judgment has more or less ignored the Convention on the Rights of the Child, 1989, which not only constituted the driving force for the enactment of the Act of 2000, but also is known as the sheet anchor for children's rights. The two big contributions of the international trends and the UN are in the field of standardising juvenile justice and of perceiving juvenile justice in terms of the children's rights. Standardising juvenile justice is independent of the rights of child development that came in vogue in the 1990s. It is true that by standardising juvenile justice the matters may improve considerably. But in spite of more resources and better training the attitude of the juvenile justice functionaries remain more or less the same. The best example of this could be found in Lakshmi v. Sub-Inspector of Police32, where Murugan, a boy of 15 years was picked up by the police in a theft case and detained in police lock-up and tortured in every possible way in connivance with the Magistracy. The Madras High Court in response to the habeas corpus petition of the mother underscored the value of due process rights of the juvenile. Apart from the Constitution the Convention on the Rights of the Child, 1989 constitutes the source of the wide range of four basic categories of rights, namely (a) right to survival, (b) right to protection, (c) right to development, and (d) right to participation. Thus, it is assumed that once the juvenile justice functionaries, including the judiciary is disciplined to think in terms of the rights of the child we would have little occasion for cases like Lakshmi32 or the recent case involving brutal beating of a juvenile by seven Delhi policemen in the course of investigation of a theft case.33 The Supreme Court in Pratap Singh1 missed an opportunity in building an edifice for children's right perspective.

It may be useful in this context to refer to a recent House of Lords ruling in R. v. G. and R.34 that related to construction of "recklessness" on the part of 11 and 12 year old boys and comparing their blameworthiness not with the normal reasonable adult but with the normal reasonable children of the same age. Also in question was the earlier House of Lords ruling in R. v. Caldwell35 that favoured assessing the "reckless" state of mind even of juveniles on the basis of adult objective standards. The House of Lords particularly referred to the implications of the United Kingdom ratifying the Convention on the Rights of the Child, in 1990. Lord Steyn in this context referred particularly to Article 40.1 CRC in these words:

"This provision imposes both procedural and substantive obligations on State parties to protect the special position of children in the criminal justice system. For example, it would be plainly contrary to Article 40.1 for a State to set the age of criminal responsibility of children of, say, five years. Similarly, it is contrary to Article 40.1 to ignore in a crime punishable by life imprisonment or detention during Her Majesty's pleasure, the age of a child in judging whether the mental element has been satisfied. It is true that the Convention became binding on the United Kingdom after Caldwell was decided. The House cannot ignore the norm created by the Convention. The factor on its own justified a reappraisal of Caldwell."36 (emphasis supplied)

To conclude, Pratap Singh1 has not only set at rest the controversy raised by Arnit Das2, or laid the limits of beneficial extension of the Act of 2000, but also created a philosophical basis for the juvenile justice system. It has suggested a world vision that is in consonance with giving a better and fairer deal to the children.

---

(2005) 3 SCC 551; (hereinafter Pratap Singh); Coram: N. Santosh Hegde, S.N. Variava, B.P. Singh, H.K. Sema and S.B. Sinha, JJ.; Two separate but concurring judgments delivered by Justice H.K. Sema, (N. Santosh Hegde, S.N. Variava, B.P. Singh, JJ. concurring) and Justice S.B. Sinha. Return to Text

1. * Professor, Faculty of Law, University of Delhi, Delhi. Return to Text
2. (2000) 5 SCC 488 (hereinafter Arnit Das). Return to Text
3. (1982) 2 SCC 202 (hereinafter Umesh Chandra). Return to Text
4. Khunnu Yadav v. Rajesh Maurya, (2003) 10 SCC 291 Return to Text
5. Dr. Chandrashekharan Pillai in his editorial comment in (2001) 2 SCC J-9 at pp. 9-10; and Mr R.D. Jain "In Defence of Arnit Das", (2001) 2 SCC J-9 at pp. 11 to 17. Return to Text
6. However, the opposition to Arnit Das was equally strong, if not more. See Professor B.B. Pande's "Rethinking Juvenile Justice: Arnit Das style", (2000) 6 SCC J-1 and Dr. Ved Kumari "Relevant Date for Applying the Juvenile Justice Act", (2000) 6 SCC J-6 and "In Defence of Arnit Das v. State of Bihar : A Rejoinder" (2002) 2 SCC J-15. These comments critiqued Arnit Das on several counts and were responsible for impassioned academic debates in Delhi Law Faculty and elsewhere. It is significant that some of the lines of arguments taken in the aforesaid critiques have influenced the Constitution Bench, with due respect. One realises that there is not a word of acknowledgement in the two judgments either about the comments or the associated academic debates. Return to Text
7. The apprehension was actually raised by R.C. Lahoti, J. (as he then was) in these words: "What happens if a boy or a girl of just less than 16 or 18 years of age commits an offence and then leaves the country or for any reasons neither appears nor is brought before the competent authority until he or she attains the age of say 50 years?" Arnit Das at p. 497, para 17. Return to Text
8. In an earlier comment on Arnit Das in this context it was observed: "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", B.B. Pande op.cit. at p. 7. Return to Text
9. Arnit Das at pp. 496-97, para 16. Return to Text
10. (2001) 2 SCC J-9 at pp. 9-10. Return to Text
11. + Ed.: These views emanated not only from linguistic niceties but from the premise that culpability of juvenile offenders is to be determined under the provisions of IPC and not under those of the Juvenile Justice Act which are designed for the rehabilitation of the juveniles. Return to Text
12. As quoted in Pratap Singh at p. 567, para 19. Return to Text
13. Pratap Singh, at p. 567, para 20. Return to Text
14. Pratap Singh, at p. 582, para 77. Return to Text
15. Ibid., at p. 582, para 77. Return to Text
16. Pratap Singh at p. 585, para 86. Return to Text
17. See Charanjeet Singh v. State of NCT of Delhi, (2004) 114 DLT 206 (DB); Upendra Kumar v. State of Bihar, (2005) 3 SCC 592; Bijender Singh v. State of Haryana, (2005) 3 SCC 685. Return to Text
18. Bhola Bhagat v. State of Bihar, (1997) 8 SCC 720 Return to Text
19. Gopinath Ghosh v. State of W.B., 1984 Supp SCC 228 Return to Text
20. Bhoop Ram v. State of U.P., (1989) 3 SCC 1 Return to Text
21. Pradeep Kumar v. State of U.P., 1995 Supp (4) SCC 419 Return to Text
22. (2005) 3 SCC 592 Return to Text
23. Pratap Singh at p. 568, para 23. Return to Text
24. Ibid., at p. 571, para 36. Return to Text
25. Ibid., at p. 586, para 92. Return to Text
26. Ibid., at p. 587, para 95. Return to Text
27. (2004) 114 DLT 206 (DB) at p. 209, para 9. Return to Text
28. This is in sharp contrast to the deliberations in a Juvenile Justice Training Course at the National Judicial Academy, Bhopal, not too long ago, where there was a great resistance even amongst the organisers in recognising the relevance of the UN Rules, Convention on the Rights of the Child and International Standards for the day-to-day administration of juvenile justice in our courts. The present author had hard time to argue that talking of the international and the UN Rules and standards was not merely fashionable glib talk but a part of the new legal discourse. Return to Text
29. Pratap Singh at p. 571, para 39. Return to Text
30. Pratap Singh, at p. 578, para 63. Return to Text
31. Ibid., at p. 579, para 64. Return to Text
32. Ibid., at p. 580, para 67. Return to Text
33. 1991 Cri LJ 2269 (Mad) Return to Text
34. See "Warrants against 7 for assaulting juveniles" The Indian Express, New Delhi City Edn., May 27, 2005. Return to Text
35. 2003 UK HL 50 (HL) Return to Text
36. 1982 AC 341 : (1981) 1 All ER 961 (HL) Return to Text
37. R. v. G. and R. at para 53. Return to Text