Introduction
The contemporary juvenile justice regime takes within its wings persons under the age of eighteen years, an age threshold that is considered appropriate and the best in Indian circumstances. The United Nations Convention on the Rights of the Child (UNCRC) mandates that the state parties should treat persons under the age of eighteen as children unless their municipal laws prescribe a lower threshold.[1] In India, the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter the JJ Act 2000), introduced a uniform threshold of eighteen years for treating a person as a child for all purposes.[2] The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter the JJ Act 2015) maintained that position and defines a child as any person who has not completed eighteen years of age.[3] The JJ Act 2015 and the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 (hereinafter the JJ Rules 2016) provide for a robust regime for treatment of children, including children who are allegedly accused of an offence, whom the JJ Act 2015 calls “child in conflict with law” (hereinafter CICL).[4] It is beyond argument that children may commit crimes. However, in modern legal systems, for the purposes of treatment and rehabilitation, CICL are governed by rules, procedures and processes different from those that apply to an adult offender. In India, at least since the introduction of Indian Penal Code, 1860, (hereinafter IPC), children under the age of seven years have remained immune from penal liability and those between seven and twelve are made liable only when it is found that they have developed sufficient maturity of understanding to appreciate the nature and consequences of their action.[5] However, neither the IPC nor the successive Code of Criminal Procedure, prescribed any mode or method for determination of age. This lack of procedure for age determination continued until 2007, when, for the first time, the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter the JJ Rules 2007), prescribed the procedure for determination of age of persons for extending the benefits of the JJ Act 2000.[6] The procedure sought to make age determination hassle free and objective, and gave precedence to documentary proof of age over medical determination of age. The JJ Act 2000 also provided that the plea of juvenility (plea that the person was a child on the date of the alleged incident) could be raised at “any stage” including “after final disposal of the case”.[7] The Supreme Court reiterated this position several times.[8] The JJ Act 2015, on this point, is in pari materia with its earlier avatar and the extant law on age determination is that the plea of juvenility may be raised at a considerably belated stage i.e. even where the remedy of appeal has been exhausted. Instances are there when the Supreme Court allowed the plea of juvenility even when the same was not raised at the time of filing of appeal.[9] The Supreme Court has allowed raising the plea of juvenility in review petitions and even in writ petitions.[10]
Determination of Plea of Juvenility at a Belated Stage
Ideally, there shouldn’t be any dispute as to the age of a person if the birth is registered in accordance with law and date of birth is entered in the school records on the basis of genuine record of birth.[11] However, in India, poverty, illiteracy, ignorance, indifference and inadequacy of the system[12] often lead to there being no documentary proof of a person’s age. Therefore, in those cases where the plea of juvenility is raised at a belated stage, often certain medical tests are resorted to forage determination in absence of the documents enumerated in Section 94 of the JJ Act 2015. It is scientifically established that medical tests on adults such as bone ossification, can only indicate a range with a margin of error of few years on both sides. Plea of juvenility at a considerably belated stage has had miraculous consequences in many cases and even death row convicts have been allowed to raise the plea of juvenility i.e. a claim that they were under the age of eighteen on the date of occurrence.[13] Evidently in almost all such cases, the persons were tried as adults and also sentenced as such. In many cases, in spite of clear stipulation of the law, such children were sentenced to life imprisonment and even death penalty.[14] Interestingly, the Juvenile Justice Act, 1986 (JJ Act 1986) had a more unequivocal prohibition against imposition of sentence of imprisonment and death penalty.[15] However, it was not until the JJ Act 2000 that the juvenile justice jurisprudence came on the centre stage of human rights and the journey has been rightly marked as one from “welfare to rights”.[16] Though it cannot be disputed that serious efforts to look into the question of liability of children from the perspective of their rights took grounding only post the JJ Act 2000, the Supreme Court had, even under the state legislations on the subject, underlined the need to allow the plea of juvenility at a belated stage.[17]
The Rationale
The rule allowing plea of juvenility to be raised at a considerably belated stage has its rationale in the contemporary child rights jurisprudence which requires the stakeholders to act in the best interest of the child. As mentioned earlier, though the successive juvenile justice legislations provided for a differential treatment mechanism for CICL, children were prosecuted, punished and sentenced like adults. In Court On Its Own Motion v. Dept. of Women and Child Development,[18] the petitioners highlighted that how several hundred children were languishing in the Tihar Jail because the police mentioned them as adults in the arrest memo. The story may not be different in other states and there is a real possibility of children languishing in adult prisons. Even after two decades of establishment of the rights centric juvenile justice system, realisation of the rights of child has remained shabby. Awareness about the child rights and correlated duties remains low among the functionaries of the juvenile justice system. Once a child is caught in the web of adult criminal justice system, it is difficult for the child to get out of it unscathed. The bitter truth is that even the legal aid programmes are mired in systemic bottlenecks and often it is only at a considerably belated stage of the proceeding that the person becomes aware of the rights, including the right to be differently treated on the ground of juvenility. Allowing plea of juvenility has had great positive effect on lives of many who kept languishing in adult prisons awaiting execution of death penalty even when they were children on the date of the incident. For instance, the Supreme Court allowed the plea of juvenility sixteen years after confirmation of death penalty in a 2000 case.[19] When the review petition was filed, the appellant also moved an application under Section 9 (2) of the JJ Act 2015 seeking declaration that he was under the age of eighteen on the date of crime. The Supreme Court allowed the plea of juvenility to be raised for the first time and ordered the Sessions Judge, Pune to decide the claim of juvenility.[20] It is settled that a person who did not raise the plea of juvenility during trial or appeal to the High Court, is not precluded from raising the plea of juvenility in appeal before the Supreme Court.[21] Juvenility has been considered even in those cases where the accused was not entitled to the benefit under the then existing law e.g. the JJ Act 1986 being above sixteen years of age.[22]
The Controversy
In Mumtaz v. State of U.P.,[23] a case where the appellant was held guilty of murder and sentenced to serve life imprisonment, attention of the Supreme Court was drawn to the likelihood of emergence of anomalous situations if the plea of juvenility is allowed at a belated stage. It was contended that if the plea of juvenility is accepted, say, in a case where the accused is now a 35 years or 40 years old person, the dispositional orders prescribed in Section 15 of the JJ Act, 2000 (now under Section 18 of the JJ Act 2015) would be an exercise in futility as these orders are meant to be passed against children (in the biological sense). The essence of the contention was that the phrase “at any stage of the proceeding” occurring in Section 7A of the JJ Act 2000 needed reconsideration and plea of juvenility should be allowed only up to a certain stage of proceeding and at the earliest opportunity. The Supreme Court issued notice to the Attorney General for seeking the views of the Government in this regard. However, later in its final decision Mumtaz v. State of U.P.,[24] the Supreme Court, upon finding that the appellant was a child on the date of occurrence, set aside the sentence of life imprisonment and remitted the matter to the jurisdictional Juvenile Justice Board to determine the quantum of fine that he should pay and also the amount of compensation to the victim. In the judgment, the Supreme Court did not say a word about limiting the plea of juvenility to a certain stage of proceeding. It has been a consistent practice that whenever plea of juvenility is raised and there exist prima facie grounds to believe that the plea is tenable, the court is required to first determine the age of the accused in accordance with the applicable rules.[25] Determination of age is often a matter of life and death and a plea of juvenility should not be rejected in a casual manner. Proviso to Section 9 (2) of the JJ Act 2015 mandatorily stipulates that “…such a claim may be raised before any court and it shall be recognized at any stage….”.[26] However, it is also settled that once the plea of juvenility is raised and the claim of juvenility is rejected after due enquiry in accordance with law,[27] the plea cannot be allowed again to circumvent the cause of justice.[28] In a case that is still pending final disposal, a Bench of Chief Justice N V Ramana, and Justices Surya Kant and Hima Kohli said that there is need to rethink the law allowing the plea of juvenility at a considerably belated stage. The opinion, it seems, stems from the fear that influential offenders may use their money and muscle power to obtain birth certificates establishing their juvenility and get away with “very lenient sentence”.[29] Even earlier, the observation of the Supreme Court in Mohd. Anwar v. State (NCT of Delhi)[30], that plea of juvenility must be raised at the earliest, preferably at the trial stage, is per incuriam, being contrary to both statutory and case law.
The Way Forward
It was not before the JJ Act 2000 (as amended in 2006) that the legislature made its intentions explicitly clear that offences committed by persons when they were minors ought not to haunt them and that they can claim the protection of this social welfare legislation any time. Allowing plea of juvenility at any stage serves the core objective of the juvenile justice regime- that justice must be done even if not demanded at the time when it was due. Allowing the plea of juvenility at a belated stage does not mean accepting the claim of juvenility. Frivolous claims may be rejected at the outset and even where the plea of juvenility is allowed, the age determination enquiry may result in rejection of the claim. However, in India, where the masses are still not aware of their rights and entitlements, any tinkering with the provisions mandating recognition of the plea of juvenility by all the courts at any stage of the proceeding will be regressive and undermine the cause of juvenile justice. The present law recognizes that children can’t remain prisoners of their past and even if their childhood cannot be returned back to them, their future will not remain hostage of their past.
[1]United Nations Convention on the Rights of the Child, art.1, Nov. 20, 1989, 1577 U.N.T.S. 3.
[2]The Juvenile Justice (Care and Protection of Children) Act, § 2 (k), No. 56, Acts of Parliament, 2000 (India).
[3]The Juvenile Justice (Care and Protection of Children) Act, § 2 (12), No. 2, Acts of Parliament, 2015 (India).
[4]The Juvenile Justice (Care and Protection of Children) Act, § 2 (13), No. 2, Acts of Parliament, 2015 (India).
[5]See, The Indian Penal Code, §§ 82 & 83, No. 45, Acts of Parliament, 1986 (India).
[6]Interestingly, the Rules framed in the year 2001, under the JJ Act 2000 were held invalid as the Central Government had no authority to make such rules. It was only after the JJ Act 2000 was amended in the year 2006, that the JJ Rules 2007 were made, including the rule for age determination. See, VED KUMARI, THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT 2015- CRITICAL ANALYSES (1st ed. 2017).
[7]The Juvenile Justice (Care and Protection of Children) Act, § 7A, No. 56, Acts of Parliament, 2000 (India).
[8]See, Hari Ram v. State of Rajasthan, (2009) 13 SCC 211.
[9]Ajay Kumar v. State of M.P., (2010) 15 SCC 83. See also, Jitendra Singh v. State of U.P., (2013) 11 SCC 193.
[10]Amit Singh v. State of Maharashtra, (2011) 13 SCC 744.
[11]See, The Registration of Births and Deaths Act, § 8, No. 18, Acts of Parliament, 1969 (India).
[12]Failure to get the births registered attracts a penalty of fifty rupees. See, The Registration of Births and Deaths Act, § 23, No. 18, Acts of Parliament, 1969 (India).
[13]Ram Deo Chauhan v. Bani Kant Das, (2010) 14 SCC 209.
[14]See, Ankush Maruti Shinde v. State of Maharashtra, (2019) 15 SCC 470.
[15]The Juvenile Justice Act, § 22, No. 53, Acts of Parliament, Acts of Parliament, 1986 (India).
[16]VED KUMARI, THE JUVENILE JUSTICE SYSTEM IN INDIA: FROM WELFARE TO RIGHTS (2nd ed. 2009).
[17]See, Bhoop Ram v. State of U.P., (1989) 3 SCC 1, where the Supreme Court allowed plea of juvenility and ordered age determination of a person who claimed that he was under 16 years of age on the date of incident.
[18]Court On Its Own Motion v. Dept. of Women and Child Development &Ors., 2012 SCC OnLine Del 2774.
[19]Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457.
[20]Narayan Chetanram Chaudhary v. State of Maharashtra, Criminal Misc. Pet. No. 5242-5243/2016 (Order on 29/01/2019).
[21]Ashok Kumar Mehra v. State of Punjab, (2019) 6 SCC 132.
[22]Satya Deo v. State of U.P., (2020) 10 SCC 555.
[23]Mumtaz Alias Muntyaz v. State of Uttar Pradesh (Now Uttarakhand), (2015) 4 SCC 318.
[24]Mumtaz Alias Muntyaz v. State of Uttar Pradesh (Now Uttarakhand), (2016) 11 SCC 786.
[25]Ganesh v. State of T.N., (2017) 3 SCC 280.
[26]The Juvenile Justice (Care and Protection of Children) Act, § 9 (2), No. 2, Acts of Parliament, 2015 (India).
[27]For a detailed discussion on procedure for age determination, See, KUMAR ASKAND PANDEY, JUVENILE JUSTICE- A COMMENTARY 256-265 (1st ed. 2019).
[28]Pawan Kumar Gupta v. State (NCT of Delhi), (2020) 2 SCC 803.
[29]Dhananjay Mahapatra, SC: Convict’s right to raise juvenility plea at any time needs rethink, TOI, Sep. 25, 2021, https://timesofindia.indiatimes.com/india/sc-convicts-right-to-raise-juvenility-plea-at-any-time-needs-rethink/articleshow/86496770.cms.
[30]Mohd. Anwar v. State (NCT of Delhi), (2020) 7 SCC 391.
This article has been authored by Dr. Kumar Askand Pandey, Associate Professor, Dr. Ram Manohar Lohiya National Law University, Lucknow. He was assisted by Divyanshu Ganesh, a student at RGNUL, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.