NATIONAL LEGAL RESEARCH DESK
The Supreme Court today refused to lower the age of juvenile from 18 years saying the legislature has fixed the age which is constitutionally permissible. A three-judge bench, headed by Chief Justice P Sathasivam, rejected two petitions, filed by BJP leader Subramanian Swamy and parents of December 16 gangrape victim, challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000.
“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 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 bench, also comprising justices Ranjan Gogoi and Shiv Kirti Singh, said. The petitioners had sought fresh interpretation of the term ‘juvenile’ in the statute and leaving it to the criminal court, instead of Juvenile Justice Board (JJB), to determine the juvenility of an offender in heinous crimes. They pleaded the juvenile accused in December 16, 2012 gangrape victim be prosecuted in a criminal court in view of the gravity of his offence. The bench, however, upheld the constitutional validity of the Act and dismissed the petitions. The court said in its 68-page judgement that the object of the JJ Act was to rehabilitate such offenders so that they could become “useful members” of the society later on.
“India has accepted the 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 the petitioners to the contrary on the strength of the thinking and practices in other jurisdictions can have any relevance,” it said. The apex court also said there was no difficulty in understanding the clear and unambiguous meaning of different provisions of the JJ Act.
“There is no ambiguity, much 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 (JJ) Act to provide a separate scheme of investigation, trial and punishment for offences committed by them.
Some excerpts from the Judgement:
The Court in its Landmark judgement has laid bare the different process of trying offences committed by children. 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 and Reasons, has been enacted to give full and complete effect to the country’s international obligations arising from India 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 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 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 legislation has been made.
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 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 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 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. D.T.C. Mazdoor Congress and Others[11] which succinctly sums up the position is, therefore, extracted below.
In the present case there is no difficulty in 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 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 already referred to.
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 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, 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 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. The above principles have been laid down by this Court in a plethora of 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 Excise and Another[12], Roop Chand Adlakha and Others vs. Delhi Development Authority and Others[13], Kartar Singh vs. State of Punjab[14], 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 Another[17] .
If the provisions of the Act clearly indicate the legislative 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 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.
Contrary international opinion, thinking or practice, 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 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 of the society in later years. India has accepted the 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 the petitioners to the contrary on the strength of the thinking and practices in other jurisdictions can have any relevance.
In the earlier paragraphs of this report we have analyzed in detail the difference between the criminal justice 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 punishment is introduced by the Act in place of the regular provisions under the Code of Criminal Procedure for trial of offenders and the punishments under the Indian Penal Code. The above situation is vastly different from what was before the Court in Mithu (supra) and also in Dadu (supra). In Mithu (supra) a separate treatment of the accused found guilty of a second incident of murder during the currency of the sentence 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 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 be exercised by the appellate court but subject to the 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 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 which is abhorrent to our constitutional values. Having taken the above view, we do not 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 the view that we have taken no question of sending the juvenile – Raju to face a regular trial can and does arise.
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 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 Justice Krishna Iyer in Murthy March Works (supra) as the present issues seem to be adequately taken care of by the same:
“Right at the threshold we must warn ourselves of the 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 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 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 from the statute books appeal lies not to the Courts but to the ballot and to the processes of democratic Government.”
In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review. In the present case unconstitutionality is alleged as springing from lugging together two dissimilar categories of match manufacturers into one compartment for like treatment.
Certain principles which bear upon classification may be mentioned here. It is true that a State may classify persons and objects for the purpose of legislation and pass laws 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 pertinent and real differences as distinguished from irrelevant and artificial ones. The constitutional standard by 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 just relation to the object for which it is proposed, it is constitutional. To put it differently, the 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. 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, in the last analysis Courts possess the power to pronounce on the constitutionality 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 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 weigh more emphatically where the subject is taxation.”
