Nearly a year after the brutal gang-rape and murder of a 23-year-old girl in the Capital on December 16, the Supreme Court on Monday issued a notice to the Centre and asked its views on the question as to who will decide the maturity of an offender, who is above 16 and below 18 years of age, in matters relating to heinous offences.
A bench headed by Justice BS Chauhan asked the Women and Child Development (WCD) Ministry to respond within four weeks to the plea that a criminal court cannot be “ousted” from judicial function to try juveniles for offences covered under the Indian Penal Code. At present, a juvenile is tried by the Juvenile Justice Board (JJB) and is awarded a maximum of three years of punishment.
At the start of the hearing, it was alleged that the legislature lacked powers to interfere with judicial functions and certain provisions of the Juvenile Justice (Care and Protection of Children) Act be declared as “unconstitutional” to the extent they put a “blanket ban” on the power of criminal courts to try a juvenile offender for offences under IPC.
“It means you are challenging the legislative competence of Parliament,” the bench said. “The question of minority of an offender needs to be decided by a criminal court and not by others,” advocate Aman Hingorani, appearing for the victim’s parents, said. The juvenile, who was six months short of 18 years at the time of the incident, was convicted for gang-rape and murder of the girl but got away with a maximum of three years imprisonment mandated under the law by the JJB here.
The four adults accused — Akshay Thakur, Vinay Sharma, Pawan Gupta and Mukesh Singh — were tried by a fast-track court which awarded them death penalty. Now the sentence is before the Delhi High Court for confirmation. Meanwhile, the proposal of WCD Ministry seeking to try juveniles between 16 and 18 involved in murders and rapes at par with adults under IPC, has met with stiff opposition from within the Government.
The National Commission for Protection of Child Rights (NCPCR) opposed the WCD’s proposal saying there was no scope for compromise on the age of the child as defined by the United Nations Convention on the Rights of the Child (UNCRC), especially as India itself has ratified it. Chairperson NCPCR Kushal Singh wrote to WCD Minister Krishna Tirath that the Commission had clarified the grounds on which it opposes any lowering of age for juveniles in the submission made to the Justice Verma Committee.
The SC bench, also comprising Justice SA Bobde, asked the counsel for the victim’s parents to provide “the portion” of the records, including the statements that implicate the juvenile offender in the December 16 case and fixed the matter for hearing on January 6.