# 13 S.C.R. 1020 SAUL BALI v. UNION OF INDIA & ANR

- **Citation:** [2013] 13 S.C.R. 1020
- **Court:** Supreme Court of India
- **Decided:** 2013-07-17
- **Bench:** Altamas Kabir, Surinder Singh Nijjar, J. Chelameswar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-s-c-r-1020-saul-bali-v-union-of-india-anr-28957
- **Pages:** 32

## Headnote

Juvenile Justice (Protection and Care of Children) Act,
C 2000 - s. 2(k) and (/) and s. 15 - Provisions under - Need
to strike down - In view of the fact that criminal offences
committed by persons within range of 16 to 18 years are on
rise - Held: The Act as amended in 2006, and the Rules
framed thereunder are based on sound principles
D recognized internationally and contained in the provisions
"' ~
of the Constitution - As per the reports of the Crimes Record
Bureau, the number of crimes committed by juveniles comes
to only about 2% of the country's crime rate - In the recent
years there has been spurt in criminal activities by adults
E and not by juveniles - In absence of proper data, it would
not be wise to deviate from the provisions of the Act, which
represent collective wisdom of Parliament - Juvenile Justiee
(Care and Protection of Children) Rules, 2007.
"'- ....
Present
petitions
were
filed
seeking
reF consideration of s. 2(k), 2(1) and 15 of Juvenile Justice
(Care and Protection of Children) Act, 2000, in the light
of spurt in criminal offences being committed by
persons within the range of 16 to 18 years, such as the
gang rape inside a moving vehicle on 16 December,
,,. '
G 2012, wherein alongwith others, a juvenile, who had
attained the age of 17% years was being tried separately
under the provisions of 2000 Act. The petitioners prayed
for striking down the provisions of s. 2(k) and 2(1) of
the Act; and to bring the Act in conformity with the
H provisions of the Constit~1dmD and to direct the Central
f
•• )>
SAUL BALI v. UNION OF INDIA
1021
Government to make changes in the Act, to bring it in
A
line with the United Nations Standard Minimum Rules
for administration of Juvenile Justice.
Dismissing the petitions, the Court
HELD: 1. There is a definite thought process, which
went into the enactment of the Juvenile Justice (Care
and Protection of Children) Act, 2000, and the Rules
subsequently framed thereunder in 2007. It cannot be
questioned that children are amongst the most
vulnerable sections in any society. They represent
almost one-third of the world's population, and unless
C
they are provided with proper opportunities, the
opportunity of making them grow into responsible
citizens of tomorrow will slip out of the hands of the
present generation. [Paras 40 and 41] [1045-G, H; 1046A-B]
D
B
2. India developed its own jurisprudence relating to
children and the recognition of their rights. With the
adoption of the Constitution on 26th November 1949,
constitutional safeguards, as far as weaker sections of
E
the society, including children, were provided for. The
Constitution has guaranteed several rights to children,
such as equality before the_ law, free and compulsory
primary education to children between the age group
of six to fourteen years, prohibition of trafficking and
forced labour of children and prohibition of employment
F
of children below the age of fourteen years in factories,
mines or hazardous occupations. The Constitution
enables the State Governments to make special
provisions for children. To prevent female foeticide, the.
Pre-conception and Pre-natal Diagnostic Techniques
G
(Prohibition of Sex Selection) Act was enacted in 1994.
One of the latest enactments by Parliament is the
Protection of Children from Sexual Offences Act, 2012.
[Para 43] [1047-D-G]
H
1022
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
3. The Juvenile Justice (Care and Protection of
Children) Act, 2000, is in tune with the provisions of the
Constitution and the various Declarations and
Conventions adopted by the world community
represented by the United Nations. The basis of fixing
8 of the age till when a person could be treated as a child
at eighteen years in the Juvenile Justice (Care and
Protection of Children) Act, 2000, was Article 1 of the
Convention of the Rights of the Child. The description
in Article 1 of th~ Convention was a contradiction in
C terms. While generally treating eighteen to be the age
till which a person co

## Text

_Characters 0–39,584 of 65,162. This is a partial read: ask again with offset=39584 for what follows._

A
B
[2013) 13 S.C.R. 1020
SAUL BALI
v.
UNION OF INDIA & ANR.
(Writ Petition (C) No. 10 OF 2013)
JULY 17, 2013
[ALTAMAS KABIR, CJI, SURINDER SINGH NIJJAR
AND J. CHELAMESWAR, JJ.]
Juvenile Justice (Protection and Care of Children) Act,
C 2000 - s. 2(k) and (/) and s. 15 - Provisions under - Need
to strike down - In view of the fact that criminal offences
committed by persons within range of 16 to 18 years are on
rise - Held: The Act as amended in 2006, and the Rules
framed thereunder are based on sound principles
D recognized internationally and contained in the provisions
"' ~
of the Constitution - As per the reports of the Crimes Record
Bureau, the number of crimes committed by juveniles comes
to only about 2% of the country's crime rate - In the recent
years there has been spurt in criminal activities by adults
E and not by juveniles - In absence of proper data, it would
not be wise to deviate from the provisions of the Act, which
represent collective wisdom of Parliament - Juvenile Justiee
(Care and Protection of Children) Rules, 2007.
"'- ....
Present
petitions
were
filed
seeking
reF consideration of s. 2(k), 2(1) and 15 of Juvenile Justice
(Care and Protection of Children) Act, 2000, in the light
of spurt in criminal offences being committed by
persons within the range of 16 to 18 years, such as the
gang rape inside a moving vehicle on 16 December,
,,. '
G 2012, wherein alongwith others, a juvenile, who had
attained the age of 17% years was being tried separately
under the provisions of 2000 Act. The petitioners prayed
for striking down the provisions of s. 2(k) and 2(1) of
the Act; and to bring the Act in conformity with the
H provisions of the Constit~1dmD and to direct the Central
f
•• )>
SAUL BALI v. UNION OF INDIA
1021
Government to make changes in the Act, to bring it in
A
line with the United Nations Standard Minimum Rules
for administration of Juvenile Justice.
Dismissing the petitions, the Court
HELD: 1. There is a definite thought process, which
went into the enactment of the Juvenile Justice (Care
and Protection of Children) Act, 2000, and the Rules
subsequently framed thereunder in 2007. It cannot be
questioned that children are amongst the most
vulnerable sections in any society. They represent
almost one-third of the world's population, and unless
C
they are provided with proper opportunities, the
opportunity of making them grow into responsible
citizens of tomorrow will slip out of the hands of the
present generation. [Paras 40 and 41] [1045-G, H; 1046A-B]
D
B
2. India developed its own jurisprudence relating to
children and the recognition of their rights. With the
adoption of the Constitution on 26th November 1949,
constitutional safeguards, as far as weaker sections of
E
the society, including children, were provided for. The
Constitution has guaranteed several rights to children,
such as equality before the_ law, free and compulsory
primary education to children between the age group
of six to fourteen years, prohibition of trafficking and
forced labour of children and prohibition of employment
F
of children below the age of fourteen years in factories,
mines or hazardous occupations. The Constitution
enables the State Governments to make special
provisions for children. To prevent female foeticide, the.
Pre-conception and Pre-natal Diagnostic Techniques
G
(Prohibition of Sex Selection) Act was enacted in 1994.
One of the latest enactments by Parliament is the
Protection of Children from Sexual Offences Act, 2012.
[Para 43] [1047-D-G]
H
1022
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
3. The Juvenile Justice (Care and Protection of
Children) Act, 2000, is in tune with the provisions of the
Constitution and the various Declarations and
Conventions adopted by the world community
represented by the United Nations. The basis of fixing
8 of the age till when a person could be treated as a child
at eighteen years in the Juvenile Justice (Care and
Protection of Children) Act, 2000, was Article 1 of the
Convention of the Rights of the Child. The description
in Article 1 of th~ Convention was a contradiction in
C terms. While generally treating eighteen to be the age
till which a person could be treated to be a child, it also
indicates that the same was variable where national laws
recognize the age of majority earlier. In this regard, one
of the other considerations which weighed with the
legislation in fixing the age of understanding at eighteen
D years is on account of the scientific data that indicates
that the brain continues to develop and the growth of a
child continues till he reaches at least the age of
eighteen years and that it is at that point of time·,~hat he
can be held fully responsible for his actions. Along with
· E physical growth, mental growth is equally important, In
assessing the maturity of a person below the age of
eighteen years. [Para 44) [1047-H; 1048-A-E]
4. There is little doubt that the incident of gang rape,
F which occurred on the night of 16th December, 2012,
was not only gruesome, but almost maniacal in Its
content, wherein one juvenile, whose role is yet to be
established, was involved, but such an ·incident, in
comparison to the vast number of crimes occurring in
G India, makes it an aberration rather than the Rule. If what
has come out from the reports of the Crimes Record
Bureau, is true, th.en the number of crimes committed
by juveniles comes to about 2% of the country's crime
rate.[Para 39) [1045-D-F]
H
\
t
I
,-
I
\
SALIL BALI v. UNION OF INDIA
1023
5. In any event, in the absence of any proper data,
A
it would not be wise to deviate from the provisions of
the Juvenile Justice (Care and Protection of Children)
Act, 2000, which represent the collective wisdom of·
Parliament. It may not be out of place to mention that in
lthe Juvenile Justice Act, 1986, male children above the
B
age of sixteen years were considered to be adults,
whereas girl children were treated as adults on attaining
the age of eighteen years. In the Juvenile Justice (Care
and Protection of Children) Act, 2000, a conscious
decision was taken by P.arliament to raise the age of c
male juveniles/children to eighteen years.[Para 45] [1048F-H]
6. In recent years, there has been a spurt in criminal
activities by adults, but not so by juveniles, as the
materials produced before the Court show. The age limit D
which was raised from sixteen to eighteen years in the
Juvenile Justice (Care and Protection of Children) Act,
2000, is a decision which was taken by the Government,
which is strongly in favour of retaining Sections 2(k) and
2(1) in the manner ln which it exists in the Statute Book.
E
[Para 46] [1049-A-B]
7. The general understanding of a sentence that can
be awarded to a juvenile under Section 15(1 )(g) of the
Juvenile Justice (Care and Protection of Children) Act,
2000, prior to its amendment in 2006, is that after
, attaining the age of eighteen years, a juvenile who is
found guilty of a heinous offence is allowed tq go free.
It was generally perceived that a juvenile was free to
F
go, even if he had committed a heinous crime, when he
G
ceased to be a juvenile. The said under- standing
needs to be clarified on account of the amendment
which came into force with effect from 22.8.2006. The
aforesaid amendment now makes it clear that even if a:
juvenile attains the age of eighteen years within a period
H
;of .one vear. he would still have to underao a sentence
. ·~
1024
su·PREME COURT REPnRTS
(2013) 13 S.C.R.
A of three years, which could spill beyond the period of
one year when he attained majority. [Para 47] [1049-C-,
D, H; 1050-A-D]-
8. There is yet another consideration which appears
B to have weighed with the worldwide community,
including India, to retain eighteen as the upper limit to
which persons could be treated as children. In the Bill
brought in Parliament for enactment of the Juvenile
Justice (Care and Protection of Children) Act of 2000, it
C has been indicated ·that the same was being introduced
to provide for the care, protection, treatment,
development and rehabilitation of neglected or
delinquent juveniles and for the adjudication of certain
matters relating to and disposition of delinquent
juveniles. The essence of the Juvenile Justice (Care and
D Protection of Children) Act, 2000, and the Rules framed
thereunder in 2007, is restorative and not retributive,
providing for rehabilitation and re-integration of children
in conflict with law into mainstream society. The age of \
eighteen
has
been fixed
on account of the .
E understanding of experts in child psychology and
behavioural patterns that till such an age the children
in conflict with law could still be redeemed and restored
to mainstream society, instead of becoming hardened
criminals in future. There are, of course, exceptions
F where a child in the age group of sixteen to eighteen
may have developed criminal propensities, which would
make it virtually impossible for him/her to be reintegrated into mainstream society, but such examples
are not of such propemions as to warrant any change
G in thinking, since it is probably better to try and reintegrate children with criminal propensities into
mainstream society, rather than to allow them to develop
into hardened criminals, which does not augur well for
the future. [Para 48f [1050-E-H; 1051-A-B]
H
SALIL BALI v. UNION OF INDIA
9. This being the understanding of the Government
A
behind the enactment of the Juvenile Justice (Care and
Protection of Children) Act, 2000, and the amendments
effected thereto in 2006, together with the Rules framed
thereunder in 2007, and the data available with regard
to the commission of heinous offences by children,
B
within the meaning of Sections 2(k) and 2(1) of the
Juvenile Justice (Care and Protection of Children) Act,
2000, no interference is necessary with the' provisions·
of the Statute till such time as sufficient data is available
to warrant any change in the provisions of the aforesaid c
Act and the Rules. On the other hand, the
implementation of the various enactments relating to
children, would possibly yield better results. [Para 49]
[1051-C-E]
10. The Juvenile Justice (Care and Protection of D
Children) Act, 2000, as amended in 2006, and the
Juvenile Justice (Care and Protection of Children) Rules,
2007, are based on sound principles recognized
internationally and contained in the provisions of the
Indian Constitution. [Para 38] [1045-C-D]
E
Avishek Goenka vs. Union of India (2012) 5''SCC 321:
2012 (4) SCR 35; Abuzar Hossain vs. State of West Bengal
(2012) 10 SCC 489: 2012 (9) SCR 244; BALCO Employees
Union vs. Union of India (2002) 2 SCC 333: 2001 (5) Suppl.
F
SCR 511; State of Tamil Nadu vs. K. Sh yam Sunder (2011)
8 SCC 737: 2011 (11) SCR 1094 - referred to.
Case Law Reference:
2012 (4) SCR 35
2012 (9) SCR 244
referred to
referred to
2001 (5) Suppl. SCR 511 referred t_o
2011 (11) SCR 1094
referred to
Para 19
G
Para 19
Para 28
Para 29
H
1026
SUPREME COURT REPORrs
[20'f3J 13 S.G.R.
A
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
10 of 2013;
Under Article 32 of the Constitution of India.
WITH
B
W.P. (C.) Nos. 14, 42, 85, 90, 182, of 2013,
W.P. (Crl.) No. 6 of 2013, T.C. (C) No. 82 of 2013
Sidharth Luthra, ASG, V.C. Mahajan, Sukumar, Depak
c Goel, Vijay K. Jain, R.K. Kapoor, Rajat Kapoor,
Shweta
Kapur, Parikshit Mahipal, Shiwani Mahipal, Anis Ahmed Khan,
P.O. Sharma, Shiva Pujan Singh, Mohinder Jit Singh, Vivek
Narayan Sharma, Ajay Singh, Ashish Azad, R.P. Wadhwani
(Intervenor-in-person ), Anant Kumar, Asthana, lmran Ali,
0 Amod Kr Kanth, A.K. Singh, Y.P. Mahajan, R.Nedumaran,
V.P.Mahajan Sunita Sharma, G.S. Bedi, Charul Sarin, Supriya
Juneja , Sushma -Suri, D.S. Mahra, for the appearing parties
Salil Bali, Petitioner-In-Person, Kamal Kumar Pandey in
Person.
E
The Judgment of the Court was delivered by
ALTAMAS KABIR, CJI. 1. Seven Writ Petitions and one
Transferred Case· have been. taken up together for
consideration in view of the commonality of the grounds and
F reliefs prayed for therein. While in Writ Petition (C) No. 14 of
2013, Saurabh Prakash Vs. Union of India, and Writ Petition
(C) No. 90 of 2013, Vinay K. Sharma Vs. Union of India, a
common prayer has been made for declaration of the Juvenile
Justice (Care and Protection of Children) Act, 2000, as ultra
vires the Constitution, in Writ Petition (C) No. 10 of 2013,
G Salil Bali Vs. Union of India, Writ Petition (C) No. 85 of 2013,
Krishna Deo Prasad Vs. Union of India, Writ Petition (C) No.
42 of 2013, Kamal Kumar Pandey & Sukumar Vs. Union of
India and Writ Petition (C) No. 182 of 2013, Hema Sahu Vs.
Union of India, a common prayer has inter alia been made to
H strike down the provisions of Section 2(k) and (I) of the above
-
•
SAUL BALI v. UNION OF INDIA
{ALTAMAS KABIR, CJI.]
1027
Act, along with a prayer to bring the said Act in conformity
A
with the provisions of the Constitution and to direct the
Respondent -No. 1 to take steps to make changes· in the
Juvenile Ju~tice (Care and Protection of Children) Act, 2000,
to bring it in line with the United Nations Standard Minimum
Rules for administration of juvenile justice. In addition to the
B
above, in Writ Petition (Crl.) No. 6 of 2013, Shi!pa Arora
Sharma Vs. Union of India, a prayer has inter alia been made
to· appoint a panel of criminal psychologists to determine
through clinical methods whether the juvenile is involved in
the Delhi·gang rape on 16.12.2012. Yet, another relief which c
has been prayed for in ·common ·during the oral .submissions
made on behalf of the Petitioners was that in offences like
rape a'nd murder, juveniles should be tried under the normal
law and not under the aforesaid Act and protection granted
to·persons up to the age of 18 years under the aforesaid Act
0
inaY, be remoyed alJd that the investigating agency should be .
permitted to keep the record of the juvenile offenders to take
preventive measures to enable them to detect repeat
offenders and to bring them to justice. Furthermore, prayers
have also been made in Writ Petition (Crl.) No. 6 of 2013
and ·writ Petition '(C) No. 85 of 2013, which are personal to
E
.
.
'
.
the juvenile accus~d in the Delhi gang rape case of
16.12.2612, not' ~o release him and to keep him in custody
or any place. of strict qetention, after he was found to be a
mentaliy abnormal. psychic 'person and that proper and
de.tailed investigation be conducted by the CBI to ascertain
his qorrect age by examining his school documents and-other
records and to further declare that prohibition in Section 21
of the Juvenile Justice (Care and Protection of Children) Act,
2000, be declaJed unconstitutional.
2. Ip most of the matters, the Writ Petitioners appeared
in-person, in support of their in.dividual cases.
F
G
3'. Writ Petition (C) No.1 O of 2013, filed by Shri Salil Bali,
was taken up as the first matter in the bunch. The Petitioner
H
1028
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A appearing in-person urged that it was necessary for the
provisions of Section 2(k), 2(1) and 15 of the Juvenile Justice
(Care and Protection of Children~ Act, 2000, to be
reconsidered in the light of the spurt in criminal offences being
committed by persons within the range of 16 to 18 years,
B such as the gang rape of a young woman inside a moving
vehicle on 16th December, 2012, wherein along with others,
a juvenile, who had attained the age of 17% years, was being
tried separately under the provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2000.
c
4. Mr. Bali submitted that the age of responsibility, as
accepted in India, is differene from what has been accepted
by other countries of the world. But, Mr. Bali also pointed out
that even in the criminal jurisprudence prevalent in India, the
age of responsibility of understanding the consequences of
D one's actions had been recognized as 12 years in the Indian·
Penal Code. Referring to Sectipn &2 of the Code, Mr. Bali
pointed out that the same pr~vides that nothing i!:l an offence
which is done by a child under seven years of age. Mr. Bali
also referred to Section. 83 of the Code, which provides that
E nothing is an offence which is done by a child aoove seven
years of age ·and un,der twelve, who has not attained ~ufficient
maturity of understanding to judge the nature ana
consequences of his conduct on a 'Particular occasion. Mr.
Bali, therefore, urged that even under· the Indian Cfiminal
F Jurisprudence the age of understanding has been fixed at
twelve years, which according to him, was comrnensu(ate with
the thinking of other countries, s1Jch as the United States of
America, Great Britain anq Canada.
5. In regard to Canada, Mr. Bali referred to the· Youth
G Criminal Justice Act, 2003, as amended from time to time,
where the age of criminal responsibility has been fixed at
twelve years. Referring to Sectio.n 13 of the Criminal Code
of Canada, Mr, Bali submitted that the same is in pari materia
with the provisions of Section 83 of the Indian Penal Code.
H
/
1'
....
.,..
.,_.
SAUL BALI v. UNION OF INDIA
[ALTAMAS KABIR, CJI.]
1029
In fact,· according to the Criminal Justice Delivery System in
A
Canada,-~ youth between the age of 14 to 17 years may be
tried and sentenced as an adult in certain situations. Mr. Bali
also pointed out that .even in Canada the Youth Criminal
Justice Act governs the application of criminal and correctional
law to thOSE;l who are twelve years old 9r older, but younger
B
than 1 a· at the time of committing the offence, and that,
although, trials were to take place in a Youth Court, for certain
offences and in certain circumstances, a youth may be
aw.arded arr adult sentence.
6. Comparing the position in USA and the Juvenile
C
JuStice and Delinquency Prevention Act, 1974, he urged that
while in several States, no set standards have been provided,
reliance is placed on the common law age of seven in fixing
the age of crimin.al responsibility, the lowest being six years
in -Nof'!:h Carolina. The general practice in the United States
D
of America, however, is that even for such children, the courts
are entltled to impose life sentences in respect of· certain
types of offences, but such life sentences without parole were
ri'of· permitted for those under the age of eighteen years
convicted of murder or offences· involving violent crime~ and
E
weapo!'ls violations.
7. In England and Wales, children accused of crimes are
geneFally tried under th~ Children and Young Persons Act,
1933, as amended by Section 16(1) of the Children and Young
F
Persons Act, 1963. Under the' said laws, the minimum age
of criminal respo11sibility in England and Wales is ten years
and those below the said age are considered to be doli
incapax and, thus, incapable of having any mens rea, which
is similar to the provisions of Sections 82 and 83 of Indian
G
Penal Code.
·
· 8. Mr. Bali has also referred to the legal circumstances
prevailing in other part$ of the world wherein the age of
criminal responsibility has been fixed between ten to sixteen
years. M[.( Bali contended that t~ere was a general worldwide
H
.····)~.~··
\·~·w; ... ---~
.. r.-:"'•.--C--•
1030
SUPREME COURT REPORTS
[2013) 13 s.c.R:
A concern over the rising graph of criminal activity of juvenil~s.
below the age of eighteen years, which has been accepted
wom.iwide to be the age limit under which all persons were
to be treated as children. Mr. Bali sought to make a distinction
. in regard to the definition of children as such in Sections 2(k)~
B and 2(1) of the Juvenile Justice (Care and Protection of
Children) Act, 2000, and the level of maturity of the ch.ild who
is capable of understanding the consequences>of his actions. ·
He, accordingly, urged that the provisions of Sections 15 and
16 of Jhe Act needed to be reconsidered and appropriate
c
orders were required to be passed in regard to the level of
punishment in respect of heinous offe.nces committed by
children below the age of eighteen years, such as· ri1urd~r.
rape, dacoity, etc. Mr. Bali submitted that allowing perpetra~ors
of such crimes to get off with a sentence of three years at
0 the maximum, was not justified and a correctional course was
required to be undertaken in that regard.
·9. Mr. Saurabh Prakash, Petitioner in \Nrit Petition (C}
No. 14 of 2013, also appeared in-person and, while endorsing
the submissions made by Mr. Bali, went a step further in
E suggesting that in view of the provisions of Sections 15 and
16 of the Juvenile Justice (Care and_ Protection of Children)
Act, 2000, children, as defined in the above Act,. were not
only taking advantage of the same, but were also being used
by Criminals for their own ends. The Petition~r reiterated Mr.
F Bali's submission that after being awarded ·a maximum
sentence of three years, a juvenile ·convicted of heinous
offences, was almost likely to become a monster in society
and pose a great danger to others, in view of his criminal
propensities. Although, _in the prayers to the Writ Petition; one
G of the reliefs prayed for was for quashing the provisio{.ls $f
the entire Act, Mr. Saurabh Prakash ultimately urged that
some of the provisions thereof were such as could be
segregated and struck down so as to preser\te the Act as a
whole. The Petitioner urged that, under Article· 21 of the·
H. Constitution, every citizen has .a fundamental right t!) live i~.
'
'(
SALll 'SAU v. UNION"c:fF INDIA
.
[ALTAMAS KABIR, CJI.]
dignity a~<l peace, without being subjected to violence· by
f1.
9ther members of society_ and th~t by shielding juvenil~s, wt:ip
were fully capable of understanding the consequence_s oftheir
actions, from the sentences, as could be awarded under the
Indian Penal Code, as far as adults are concerned,: the $tate
was creatin·g a class of citizens who were not only prone to · e
criminal activity, but in whose cases restoration or ·.
rehabilitation was r.iot possible. Mr. Saurabh. Prakash
submitted that the. provisions of Sections .15 a.nd 16 of the .
Juvenile Justice (Care and Protection of Children) Act, 2000, . ·
violated the· rights guaranteed to a citizenunder Arti~ 21 of c
the Constitution and were, therefore, liable to be str~ck down,
10. Mr. Saurabh Prakash' also submitted. that 'the
provisions of Section 19 of the Act, which pfovided for
removal of disqualification attaching· to conviction, were:also. D
illogical and were liable.to be ~truck down. If was,. submitted
that in order to prevent repeated offences by an individual,Jt
was ·necessary to .maintain the records,1ofttie inquiry.
conducted by the ·Juvenile Justice Board: in.·relation to
juveniles so that, such records would enable the;;.'alithorities
concerned. to assess the criminal propensity ofan individual,
E
which would call for' a different approach to. be taken atcthe
time of inquiry.' Mr. Sa.urabh Prakash urged this c'ourt· to :giVe
a -direction·· to the effect that the Juvenile Justice Board or
co·u·rt,s or. other high public authorities would have the ,
discretion to direct that in a particular case, the provisions of F'
the general taw would apply to a juvenile and not those. of.the
Act.
.
.
.
·· .
.
11. · Mr. Vivek Narayan· Sharma, learned Advocate,.
appeared for the petitioner. in Writ Petition ·(Crt) No. 6 -of G
2013, filed by one Shilpa Arora Sharma, and ·submitted that
the Juvenile Justice Board should be vested with the discretion
to impose punishment beyond three years,· as limited by
Section 15 of the JuvenHe Justice (Car~ and~Protectionof
Children) Act, 2000,. in c~ses wner~·ji 'chJI~~ ihavi~Q.Juu H
1032
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A knowledge of t~e consequences of his/her actions, commits
a heinous offence punishable either with life imprisonment or
death. Mr. Sharma submitted that such a child did not deserve
to be treated as a child and be allowed to re-mingle in sociefy,
particularly when the identity'. of the child is to be kept a secret
B unaer Sections 19 and 21 of the Juvenile Justice (Care and
Protection of Children) Act, 2000. Mr. Sharma submitted that
in many . cases children between the ages of sixteen to
eighteen years were, in fact, being exploited by adults to
commit heinous offences who knew full well that the
c punishment therefor would not exceed three years.
12. Mr: Sharma urged that without disturbing (he other
beneficient provisions of the Juvenile Justice {Care and
Protection of Children) Act, 2000, some of the gray areas
pointed out could be addressed in such" a manner as would
D make the Juvenile Justice· (Care and Protection of Children)
Act, 2000, more effective and prevent the misuse thereof.
1·3. In Writ Petition (C) No. 85 of 2013, filed by Krishna
Deo Prasad, Dr. R.R. Kishor appeared for the Petitioner and
E gave a detailed account of the manner in which the Juvenile
Justice Delivery System had evolved. Referring to the doctrine
of doli ir:icapax, rebuttable presumption and adult
responsibility, Dr; Kishor contended that even Article 1 of the
"· /
UN C()nvention on the Rights of the Child defines a child in
F the followi11g t~rms:
"Ar:ti9le . i
For the purposes of the present Conventi()n, a child
means every human being below the age of eighteen
years '1n1ess unqer the law applicable to the child,
majority ·is attained earlier."
14. Dr. Kishor contended that, as pointed out by Mr.. Salil
Bali, the expression "child" has been defined in various ways
H
i.n different countries all over the world. Accordingly, the
SAUL BALI v. UNION OF INDIA
1033
[ALTAMAS KABIR, CJI.]
...;; ..,._
definition of a child in Section 2(k) of the Juvenile Justice
A
(Care and Protection of Children) Act, 2000, would depend
on the existing laws in India defining a child. Dr. Kishor
referred to the provisions of the Child Labour (Prohibition and
Regulation) Act, f986, as an example, to indicate that children
up to the age of fourteen years were treated differently from
B
children between the ages of fourteen to eigl'lteen, for the
purposes of employment in hazardous industries. Dr. Kishor
re-asserted the submissions made by Mr. Bali and Mr.
,.
'(
Saurabh Prakash, in regard to heinous crimes committed by
children below the age of eighteen years, who were capable c
of understanding the consequences of their acts.
15. Dr. Kishor also referred to the provisions of Sections
82 and 83 of the Indian Penal Code, where the age of
responsibility and comprehensiofr has been fixed at twelve
0
years a·nd below. Learned counsel submitted that having
•
regard to the above-mentioned provisions, it would have to
be seriously considered as to whether the definition of a child
in the Juvenile Justice (Care and Protection of Children) Act,
2000, required reconsideration. He urged that because a
person under the age of 18 years was considered to be a
E
child, despite his or her propensity to commit criminal
offences, which are of a heinous and even gruesome nature,
' ,-"
such as offences punisbable under Sections 376, 307, 302,
392, 396, 397 and 398 IPC, the said provisions have been
mi
1sused and exploited by criminals and people having their
F
own scores to settle. Dr. Kishor urged that the definition of a
"juvenile" or a "child" or a. "juvenile in conflict with law"; in
Sections 2(k) and 2(1) of the Juvenile Justice (Care and
Protection of Children) Act, 2000, was liable to be struck down
..,
""'!'
and replaced with a more meaningful definition, which would
G
exclude such juveniles.
16. Mr; Vikram Mahajan, learned Senior Advocate
appearing for the Petitioner, Vinay K. Sharma, in Writ Petition
(C) No. 90 of 2013, urged that the right given to a citizen of
H
1034
SUPREME COURT REPORTS
[2013] 13 S.C.R.
,
A India under Article 21 of the Constitution is impinged upon
·-;-;;...
by the Juvenile Justice (Care and Protection of Children) Act,
2000. Mr. Mahajan urged that the Juvenile Justice (Care and
rProtection of Children) Act, 2000, operates in violation of
Articles 14 and 21 of the Constitution and that Article 13(2),
B which relates to post Constitution laws, prohibits the State
from making a law which either takes away totally or
abrogates in part a fundamental right. Referring to the United
Nations Declaration on the Elimination of Violence against
Women, adopted by the General Assembly on 20th
" •
c December, 1993, Mr. Mahajan pointed out that Article 1 of
the Convention describes "violence against women" to mean
any act of gender-based violence that results in, or is likely
to result in, physical, sexual or psychological harm or suffering
to women. Referring to the alleged gang rape of a 23 year
D old para-medical student, in a moving bus, in Delhi, on 16th
December, 2012, Mr. Mahajan tried to indicate that crimes
committed by juveniles had reached large and serious
"
proportions and that there was a need to amend the law to
ensure that such persons were not given the benefit of lenient
E
punishment, as contemplated under Section 15 of the Juvenile
Justice (Care and Protection of Children) Act, 2000. From
the figures cited by him, he urged that even going by statistics,
1 % of the total number of crimes committed in the country
would amount to a large number and the remedy to such a
!
problem would lie in the Probation of Offenders Act, 1958,
.~
F which made the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000, redundant and ultra vires
Article 21 of the Constitution.
17. Ms. Shweta Kapoor appeared in Transferred Case
G No. 82 of 2013 in-person and questioned the vires of Sections
r
.....
16(1), 19(1), 49(2) and 52(2)(a) of the Juvenile Justice (Care
and Protection of Children) Act, 2000, and submitted that they
were liable to be declared as ultra vires the Constitution.
Referring to Section 16 of the aforesaid Act, Ms. Kapoor
H submitted that even in the proviso to Sub-section (1) of
SAUL BALI v. UNION OF INDIA
1035
[ALTAMAS KABIR, CJI:]
~ Section 16, Parliament had recogniz~d the distinction
A
between a juvenile, who had attained the age of sixteen years,
but had committed an offence which was so serious irr nature
that it would not be in his interest or in the interesf'of .other
juveniles in a special home, to send him to such special home.
Considering that none of the other measures provided under
B
the Act was suitable or sufficient, the Government· had
empowered the Board to _pass an order for the juvenile to be
kept in such place of safety and in such manner as it thought
.,.
fit. Ms. Kapoor submitted that no objection· could be taken to
the said provision except for the fact that in the proviso to c
Section 16(2), it has been add~d that the period of detention
order would not exceed, in any case, the maximum limit of
punishment, as provided under Section 15, which is three
years.
18. Ms. Kapoor contended that while the provisions of D
'
;.
the Juvenile Justice (Care and Protection of Children) Act,
2000, are generally meant for the benefit of the juvenile
· offenders, a serious attempt would have to be made to grade
the nature of offences to suit the reformation contemplated
by the Act.
E
19. As part of her submissions, Ms. Kapoor referred to
the decision of this Court in Avishek Goenka Vs. Union of
...
.
;+
India [(2012) 5 SCC 321], wherein the pasting of black films
on glass panes were banned by this Court on account of the
F
fact that partially opaque glass panes on vehicles acted as
facilitators of crime. Ms. Kapoor urged that in the opening
paragraph of the judgment, it ha'S been observed that
"Alarming rise in heinous crimes like kidnapping, sexual
-
~ assault on w.omen and dacoity have impinged upon the right
G
to life and. the right to live in a safe environment which are
within the contours of Article 21 of the Constitution of India".
Ms. Kapoor also referred to another decision of this Court in
Abuzar Hossain Vs. State of West Bengal [(2012) 10 SCC
489], which dealt with a different question regarding the
H
1036
SUPREME COURT REPORTS
[2013) 13 S.C.R.
A provisions of Section 7A of the Juvenile Justice (Care and
~
Protection of Children) Act, 2000, and the right of an accused
to raise the claim of juvenility at any stage of the proceedings
and even after the f"rnal disposal of the case.
8
20. In conclusion, Ms. Kapoor reiterated her stand that
in certain cases the definition of a juvenile in Sections 2(k)
and 2(1) of the Juvenile Justice (Care and Protection of
Children) Act, 2000, would have to be considered differently.
21. The next matter which engaged our attention is Writ
C Petition (Civil) No.90 _of 2013 filed by one Vinay Kumar
Sharma, praying for a declaration that the Juvenile Justice
(Care and Protection of Children) Act, 200(); be declared ultra
vires the Constitution and that children should also be tried
along with adults under the penal laws applicable to adults.
D
22. Writ Petition (Civil) No.42 of 2013 has been filed by
Kamal Kumar Pandey and Sukumar, Advocates, inter alia,
for an appropriate writ or direction declaring the provisions
of Sections 2(1 ), 10 and 17 of the Juvenile Justice (Care
E and Protection of Children) Act, 2000, to be irrational,
arbitrary, without reasonable nexus and thereby ultra vires and
unconstitutional, and for a Writ of Mandamus commanding
the Ministry of Home Affairs and the Ministry of Law and
Justice, Government of India, to take steps that the aforesaid
Act operates in conformity with the Constitution. In addition,
F a prayer was made to declare the provisions of Sections 15
and 19 of the above Act ultra vires the Constitution.
23. The main thrust of the argument advanced by Mr.
Pandey, who appeared in person, was the inter-play between
G International Conventions and Rules, such as the Beijing Rules,
1985, the U.N. Convention on the Rights of the Child, 1989,
and the Juvenile Justice (Care and Protection of Children)
Act, 2000. While admitting the salubirous and benevolent and
progressive character of the legislation in dealing with children
H in need of care and protection and with children in conflict
' 4
\
_f
y
-·
>
,+
' '
)
~
"
--":"
SAUL BALI v. UNION OF INDIA
1037
[AL TAMAS KABIR,. CJI.]
with law, Mr. Pandey contended that a distinction was required
A
to be made in respect of children with a propensity to commit
heinous crimes which were a threat to a peaeeful social order.
Mr. 'Pandey reiterated the submissions made earlier that it
was unconstitutional to place all juveniles, irrespective of the
. gravity of .the offences, in one bracket. Urging that Section
B
'2(1) of the Juvenile Justice {Care and Protection of Children)
·Act,··2000, ought not to have placed all children in conflict
.with la~·witi)inth.e same bracket, Mr. Pandey submitted that
th~ ~arne iS ultravires Article 21 of the Constitution. Referring
to the report of the National Crime Records Bureau (NCRB) c
'for the years 2001 _to 2011, Mr. Pandey submitted that
betWeen · 200.1 · ancf'2011, tlie involvement of juveniles in
cognizable crimes was onthe rise. Mr. Pandey urged that it
was a well-established medical~psychological fact that the level
of understanding of a. 16 year~old·was ~fpar with that· of
0
adults.
·
. · ·
24. Mr. Pandey's next volley was directed towards
Section 19 of the Juvenile Justice (Care and Protection of
Children) Act, 2000, Whi9h provides· for the removal of any
disqualification attached to an offence of any nature. Mr.
E
Pandey submitted th~t the1'said provisions do not take into
account the fact relafing ·to repeated offences ·being
perpetrated by a juveni.le whose records of previous offences
are removed. Mr. Pandey co,nte.nded that Section 19 of the
Act' was required to be amended to enable the concerned
F
authorities to retain records pf previous offences committed
by a juvenile for the purposes of identification of a juvenile
with a propensity to repeatedly commit offences of a grievous
or heinous nature.
25. Mr. Pandey submitted that Parliament had exceeded'
its mandate by blindly adopting eighteen as the upper limit in
categorising a juvenile or a child, in accordance wit'1· the
.Beijing Rules, 1985, and the U.N. Convention, 1989, without
faking into account the socio-cultural economic conditi.ons and
G
H
1038
SUPREME COURT REPORTS
[2013] 13 S.C.R.
~
A the legal system for administration of criminal justice in India.
..
-;--
,
Mr. Pandey urged that the Juvenile Justice (Care and
Protection of Children) Act, 2000, was required to operate in
conformity with the provisions of the Constitution of India.
B
26. Ms. Hema Sahu, the petitioner in Writ Petition (Civil)
>·
No. 182 of 2013, also appeared in person and restated the
·views expressed by the other petitioners that the United
....
....
Nations Standard Minimum Rules for the Administration of
t
Juvenile Justice, commonly known as the "Beijing Rules",
/
recognized and noted the difference in the nature of offences
'y
.. l
c committed by juveniles in conflict with law. Referring to the
..,
decision of this Court in the case commonly known as the
"Bombay Blasts Case", Ms. Sahu submitted that a juvenile
who was tried and convicted along with adults under the
D
Terrorist and Disruptive Activities Act (TADA), was denied
the protection of the Juvenile Justice (Care and Protection of
Children) Act, 2000, on account of the serious nature of the
" " '
offence. Ms. Sahu ended on the note that paragraph 4 of the
1989 Convention did not make any reference to age.
•
E
27. Appearing. for the Union of India, the Additional
Solicitor General, Mr. Siddharth Luthra, strongly opposed the
»-
submissions made on behalf of the Petitioners to either
declare the entire Juvenile Justice (Care and Protection of
Childten) Act, 2000, as ultra vires the Constitution or parts
,, ..
F thereof, such as Sections 2(k), 2(1), 15, 16, 17, 19 and 21.
After referring to the aforesaid provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000, the
learned ASG submitted that Parliament consciously fixed
~
eighteen years as the upper age limit for treating persons as
•
G juveniles and children, taking into consideration the general
r
trend of legislation, not only internationally, but within the
country as well.
28. The learned ASG submitted that the Juvenile Justice
(Care and Protection of Children) Act, 2000, was enacted
H
SAUL BALI v, UNION OF INDIA
1039
-
[ALTAMAS KABIR, CJI.]
~
~·
after years of deliberation and in conformity with inte·rnational
A
standards as laid down in the U.N. Convention on the Rights
of the Child, 1989, the Beijing Rules, 1985, the Havana Rules
and other international instruments for securing the best
interests of the child with the primary object of social
reintegration of child victims and children in conflict with law,
B
without resorting to conventional judicial proceedings which
existed for adult criminals. In the course of his submissions,
the learned ASG submitted a chart of the various Indian
. • statutes and the manner in which children have been excluded
from liability under the said Acts upto the age of 18 years. In c
most of the s~nactnients, a juvenile/child has been referred
to a person who 1~low 18 years of age. The learned ASG
submitted that in pursuance of international obligations, the
Union of ln"dia after due deliberation had taken a conscious
policy decision to fix the·age of a child/juvenile at the upper
D
....
>
limit of 18 years. The learned ASG urged that the fixing of
the age when a ct:iild ceases to be a child at 18 years is a
matter of policy which could not be questioned in a court of
law, unless the same could be shown to have violated any of
the funtjamen.tal rights, ahd in particular Articles 14 and 21 of. E
the Constitution. Referring to the decision of this Court in
BALCO Employees Union Vs.