Now that the juvenile accused in the December 16, 2012, gang-rape in Delhi has officially come of age (June 4, 2013), it may be pertinent to examine if it was always open to the authorities to try him as an adult in the crime. If so, the logical corollary would be that he can still be tried as an adult. The Delhi gang-rape shook the nation and roused citizens across the country to rise against police indifference and ensure that cases are registered when girls lodge complaints. The judicial verdict in this case will be viewed as a landmark in India’s war on crimes against women.
It is well known that the refusal of the authorities to try the juvenile as an adult perturbed the nation. The Chief Justice of India on several occasions advocated leniency for juveniles, and directly blamed the media for allegedly whipping up public sentiments against the juvenile by projecting him as the most brutal among all accused.
On January 28, 2013, a Delhi court upheld that the accused was a juvenile, aged 17 years 6 months at the time of the incident. He will be detained in a ‘special home’ for three years if found guilty, as per the Juvenile Justice Act. Or so we have been told.
Yet in March 2013, delivering its verdict in the Mumbai 1993 serial bomb blasts case (Yakub Abdul Razak Memon vs State Of Maharashtra), Supreme Court Justices P Sathasivam and BS Chauhan ruled that terrorism and heinous crimes cannot be fastened only on adults. The bench upheld the conviction of Muhammad Moin Faridulla Qureshi (A-43), who was 17 years 3 months old when he loaded vehicles with explosives like RDX and fitted them with timers to trigger the explosions of March 12, 1993.
Qureshi and others also lobbed hand grenades at the Macchimar Hindu Colony, Mahim, in which three persons died and six were injured. He was denied leniency under the Juvenile Justice Act (JJ Act) and awarded a life term in jail.
Dismissing the contention that Qureshi ought to have been tried under the Juvenile Justice Act, 2000 and not under The Terrorist And Disruptive Activities Act, 1987 (TADA), the Court noted that Section 28, JJ Act, deals with Alternative Punishment: “Where an act or omission constitute an offence punishable under this act and also under any other Central or State act, then notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offences shall be liable to punishment only under such act as provides for punishment which is greater in degree” (emphasis added).
Further, Section 25 of TADA deal with extraordinary circumstances: “The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this act or in any instrument having effect by virtue of any enactment other than this Act.”
Thus, both legislations contain provisions for over-riding effect on any other law for the time being in force. The Court ruled, “where there is inconsistency between the provisions of two statutes and both can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment of the legislature conveyed by the language of the relevant provisions therein”. The Bench took special notice of the injunction that “deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person…”
However, Section 3 of TADA provides for punishment for terrorist acts and provides whoever with intention commits such acts shall be punishable. But Section 3 clause 5 explicitly starts with ‘any person’. Therefore, it covers every person including the juvenile. Section 4(1) provides for punishment for disruptive activities and also uses the same terminology i.e whoever. Section 6 provides for enhanced punishments and refers to any person. Therefore, the phraseology used by legislature included every person whoever he may be.
Hence, the court ruled that there is no justification whatsoever to restrict the meaning of ‘any person’ and ‘whoever’ only to a major or non-juvenile as such an interpretation would have a potentiality to defeat the object of TADA.
The court noted that the JJ Act itself provides for an exception under which even bail may not be granted, hence it does not over-ride the provisions of TADA in all circumstances without any exception, and in case the legislature itself has carved out an exception not to grant relief to a juvenile under the JJ Act, it cannot be held that it would prevail over TADA under all possible circumstances.
As there cannot be a definitive answer to what the words “the ends of justice” mean, the law has to be interpreted in such a manner that it develops coherently in accordance with the principles, so as to serve, even-handedly, the ends of justice.
Section 4(1) of JJ Act was amended with effect from 22.08.2006; this provision gives the overriding effect to this Act over other statutes. But, it reads that the Act would override “anything contained in any other law for the time being in force”. As TADA has then ceased to be in force, the Court ruled that the JJ Act would not override TADA.
TADA was created to deal with a special category of persons, viz., Terrorists. From the facts of the case, it was clear that Qureshi from his conduct “cannot by any stretch of imagination qualify as a child in need of care and protection as the acts committed by him are so grave and heinous warranting the maximum penalty but the Designated Court after considering all these factors awarded him lesser punishment when the co-accused who accompanied him to Fishermen’s colony and committed similar acts were awarded with the maximum punishment for heinous acts committed by them along with co-accused”.
The Court observed that Qureshi and his co-accused “without any rhyme or justification or even without any sort of reason plausible or otherwise” committed acts “in which there existed no regard to the life of any person, not even remotely connected with any of them”. It said, “The existence of such persons would be eminently dangerous for the society of law-abiding persons. It is difficult to perceive that such persons can be reformed by any type of punishment”.
It noted that that accused “knowingly and willingly participated” in the various stages of the crime. These observations appear to have a bearing on the Delhi gang-rape and other incidents of wanton brutality against women, young girls, and minor children.
NitiCentral.com, 6 June 2013
http://www.niticentral.com/2013/06/06/law-should-treat-juvenile-rapist-as-adult-86351.html