# DR. SUBRAMANIAN SWAMY & ORS v. RAJU THR. MEMBER JUVENILE JUSTICE BOARD & ANR

- **Citation:** [2014] 9 S.C.R. 283
- **Court:** Supreme Court of India
- **Decided:** 2014-03-28
- **Case number:** Criminal Appeal No.695 of 2014
- **Bench:** P. Sathasivam, RANJAN GOGOi, Shiva Kirti Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-subramanian-swamy-ors-v-raju-thr-member-juvenile-justice-board-anr-30201
- **Pages:** 47

## Headnote

A
B
Juvenile Justice Act,
2000 (as
amended)
- C
Constitutionality of - Enactment of the Act - Purpose -
lnclusioh of all persons under the age .o(18 into a .class called
'juveniles' - Validity - Held: The Act was enacted to give full
and complete effect to the country's international obligations
arising from India being a sigRatory to three separate D
conventions, namely, the Beijing Rules, the UN Convention
and the Havana Rules - Also, the Act is a beneficial piece of
legislation - If the Act is plainly read and understood, the
resultant effect thereof is wholly consistent with Art. 14 - The
Act, therefore, need not be read down, as suggested, to save E .
it from· the
vice of uncons(itutionafity for such
unconstitu#orrality does not exist - If the legislature has
adopted the age of 18 as the dividing line between juveniles
and adults-End such a decision is constitution-any permissible
the enquiry by the Courts must com,£;1, to an end - Even F
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 .
.
Juvenile Justice Act, 2000 (as amended) - Criminal G
justice system and the system for dea/-ing with offenders under
the Act - Difference between - Elucidated.
283
H
A
284
SUPREME COURT REPORTS [2014] 9 S.C.R.
A
Constitution of India - Art. 14 - Classification or
categorization of persons into one class/group - Validity -
Held: 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
B
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, Art. 14 will
not forbid such a course of action - Juvenile Justice Act, 2000
c (as amended).
D
E
Doctrines - Doctrin(!C:'-Of "reading. down" - Principles of -
Held: Reading down the provisions of a sti11ute cannot be
resorte·d to when the meaning thereof is plain and
unambiguous and the legislative intent is Clear.
Interpretation of Statutes - Thinking and practices in
foreign jurisdictions - Relevance of - Held: Contrary
international opinion, thinking or practice does not dictate the
legislation of a sovereign nation - Juvenile Justice.
Dismissing the appeal and the writ petition, the Court
HELD:1.1. The Juvenile Justice Act (as amended), as
manifestly clear from the Statement of Objects and
Reasons, has been enacted to give full and complete
F effect to the country's international obligations arising
from India being a signatory to the three separate
conventions, namely, the Beijing Rules, the UN
Convention and the Havana Rules. Also, the Act is a
beneficial piece of legislation and must therefore receive
G its due interpretation as a legislation belonging to the
said category. [Para 39] [320-H; 321-A-B, C]
H
1.2. Reading down the provisions of a statute cannot
be resorted to when the meaning thereof is plain and
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
285
JUVENILE JUSTICE BOARD
unambiguous and the legislative intent is clear. Courts
A
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
B
implied without undertaking what, unmistakably, would
be a. legislative exercise, the Act may be read down to
save it .from unconstitutionality. [Para 42] [323-8-D]
1.3. In the present case, there is no ambiguity, much
C
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 Act to provide
a separate scheme of investigation, trial and pun

## Text

_Characters 0–39,820 of 90,830. This is a partial read: ask again with offset=39820 for what follows._

[2014] 9 S.C.R. 283
DR. SUBRAMANIAN SWAMY & ORS.
v.
RAJU THR. MEMBER JUVENILE JUSTICE BOARD &
ANR.
(Criminal Appeal No.695 of 2014)
MARCH 28, 2014
[P. SATHASIVAM, CJI, RANJAN GOGOi AND
SHIVA KIRTI SINGH, JJ.]
A
B
Juvenile Justice Act,
2000 (as
amended)
- C
Constitutionality of - Enactment of the Act - Purpose -
lnclusioh of all persons under the age .o(18 into a .class called
'juveniles' - Validity - Held: The Act was enacted to give full
and complete effect to the country's international obligations
arising from India being a sigRatory to three separate D
conventions, namely, the Beijing Rules, the UN Convention
and the Havana Rules - Also, the Act is a beneficial piece of
legislation - If the Act is plainly read and understood, the
resultant effect thereof is wholly consistent with Art. 14 - The
Act, therefore, need not be read down, as suggested, to save E .
it from· the
vice of uncons(itutionafity for such
unconstitu#orrality does not exist - If the legislature has
adopted the age of 18 as the dividing line between juveniles
and adults-End such a decision is constitution-any permissible
the enquiry by the Courts must com,£;1, to an end - Even F
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 .
.
Juvenile Justice Act, 2000 (as amended) - Criminal G
justice system and the system for dea/-ing with offenders under
the Act - Difference between - Elucidated.
283
H
A
284
SUPREME COURT REPORTS [2014] 9 S.C.R.
A
Constitution of India - Art. 14 - Classification or
categorization of persons into one class/group - Validity -
Held: 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
B
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, Art. 14 will
not forbid such a course of action - Juvenile Justice Act, 2000
c (as amended).
D
E
Doctrines - Doctrin(!C:'-Of "reading. down" - Principles of -
Held: Reading down the provisions of a sti11ute cannot be
resorte·d to when the meaning thereof is plain and
unambiguous and the legislative intent is Clear.
Interpretation of Statutes - Thinking and practices in
foreign jurisdictions - Relevance of - Held: Contrary
international opinion, thinking or practice does not dictate the
legislation of a sovereign nation - Juvenile Justice.
Dismissing the appeal and the writ petition, the Court
HELD:1.1. The Juvenile Justice Act (as amended), as
manifestly clear from the Statement of Objects and
Reasons, has been enacted to give full and complete
F effect to the country's international obligations arising
from India being a signatory to the three separate
conventions, namely, the Beijing Rules, the UN
Convention and the Havana Rules. Also, the Act is a
beneficial piece of legislation and must therefore receive
G its due interpretation as a legislation belonging to the
said category. [Para 39] [320-H; 321-A-B, C]
H
1.2. Reading down the provisions of a statute cannot
be resorted to when the meaning thereof is plain and
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
285
JUVENILE JUSTICE BOARD
unambiguous and the legislative intent is clear. Courts
A
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
B
implied without undertaking what, unmistakably, would
be a. legislative exercise, the Act may be read down to
save it .from unconstitutionality. [Para 42] [323-8-D]
1.3. In the present case, there is no ambiguity, much
C
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 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
D
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. [Para
43] [324-E-G]
1.4. Classification or categorization need n<?t 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
E
a particular class. So long as the broad features of the
F,
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 G
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. If the Act is plainly read and Ii
understood, the resultant effect thereof is wholly
286
SUPREME CGURT REPORTS [2014) 9 S.C.R.
A
consistent with Article 14. The Act, therefore, need not
: be read down, as suggested, to save it from the vice of
unconstitutionality for such unconstitutionafity does not
exist. [Paras 44, 45] [324-H, A-8, F]
·
B
c
1.5. That in certain foreign jurisdictions, the position
is otherwise would hardty be of any consequence so far
as ou.r country is concerned. Contrary international
opinion, thinking or practice, even if assumed, does not
dictate the legislation of a sovereign nation. If the
legis1ature bas adopted the age of 18 as the dividing line
between juveniles and adults and such a decision is
constitutionally permissible the enqutry 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 .
D treatment otrght 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
E
F
members of the society in later years. India has aecepted
the above position and legislative wisdom has led to the
enactment of the JJ Act in its present form. [Para 46)
{326-A-D]
1.6. There is djfference 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 juven11e offenders -ar~
concerned. The same penal law i.e. Indian Penal Code
apply to all juveniles. The only difference is that a
G different scheme for trial and ptirnsbment Is introduced
by the Act in place of the regular pr-0visions under the
Code of Criminal Procedure for trial of offenders and the
punishments under the Indian Penal Code. Nothing
sweeping and drastic has been introduced by the
H
provisions of the Act so that the Act sets at naught all
DR SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
287
JUVENILE JUSTICE BOARD
the essential features of the criminal justice system and
A
introduces a scheme which is abhorrent to our
constitutional values. [Para '47] [326-F-G; 327-D-E]
Mithu vs. State of Punjab (1983) 2 SCC 277: 1983 (2)
SCR 690 and Dadu vs. State of Maharashtra (2000) 8 SCC
B
437 - distinguished.
Pratap Singh vs. State of Jharkhand and Another (2005)
3 SCC 551: 2005 (2) SCR 576 - followed.
Delhi Transport Corporation vs. D. T. C. Mazdoor c
Congress and Others 1991 Supp. (1) SCC 600: 1990 (1)
Suppl. SCR 142; Murthy Maleh Works and Others vs. The
Asstt Collector of Central Excise and Another(t974) 4 SCC
428: 1974 (3) SCR 121; Roop Chand Adlakha and Others
vs. Delhi Development Authority and Others 1·959 Supp (1)
0
SCC 116: 1988 (3) Suppl. SCR 253; Kartar Singh vs. State
of Punjab (1994) 3 SCC 569: 1994 (2) SCR 375; Basheer
alias N.P. Basheer vs. State of Kerala (2004) 3 sec 609:
20-04 (2) SCR 224; B. Manmad Reddy and Others vs.
Chandra Prakash Reddy and Others (2010) 3 SCC 314:
E
2010 (2) SCR 860 and Transport and Dock Workers Union
and Others vs. Mumbai Port Trust and Another (2011) 2 SCC
575: 2010 (14) SCR 873 - relied on.
Essa @ Anjum Abdul Razak Memon vs. State of
Maharashtra (2013) 3 SCALE 1; Sa/ii Bali vs. Union of India
F
(2013) 4 SCC 705; Kesho Ram and Others vs. Union of India
and Others (1989) 3 SCC 151: 1989 (2) SCR 1005; Natural
Resources Allocation, In Re, Special Reference No.1 of
2012 (2012) 10 SCC 1: 2012 (9) SCR 311 - referred to.
Roper vs. Simmons 543 US 551 (2005) and Graham vs
Florida 560 us 48 (201 O) - referred to.
Case Law Reference:
(2013) 3 SCALE 1
referred to
Para 13
G
H
288
·SUPREME COURT REPORTS [2014] 9 S.C.R.
A
1983 (2) SCR 690
distinguished
Para 15
(2000) 8 sec 437
distinguished
Para 15
(2013) 4 sec 105
referred to
Para 15
B
1989 (2) SCR 1005
referred to
Para 20
2012 (9) SCR 311
referred to
Para 20
543 us 551 (2005)
referre,d to
Para 32
560 us 48 (2010)
referred to
Para 32
c
2005 (2) SCR 576
followed
Para 39
1990 (1) Suppl. SCR 142 relied on
Para 42
1974 (3) SCR 121
relied on
Para 44
D
1988 (3) Suppl. SCR 253 relied on
Para 44
1994 (2) SCR 375
relied on
Para 44
2004 (2) SCR 224
relied on
Para 44
E
· 2010 (2) SCR 860
relied on
Para 44
2010 (14) _SCR 873
relied on
Para 44
CRMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 695 of2014
F
From the Judgment and Order dated 23.01.2013 of the
High Court of Delhi at New Delhi in WPCRLA No. 124 of 2013.
WITH
G W P. (Crl.) No. 204 of 2013.
Sidharth Luthra, Rakesh Khanna, ASGs, Anooop G.
Chaudhari, Dr. Rexna Swamy, Dr. Aman Hingorani, Priya
' Hingorani, Dr. Shweta Hingorani, Hingorani & Associates,
H Yogmaya Agnihotri, Seema Rao, Supriya Juneja, Harsh
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
289
JUVENILE JUSTICE BOARD
Prabhakar, Mohit Nagar, Sushma Suri, B. Krishna Prasad, A
J. Bhambhani, Nisha Bhambhani, A. K. Asthana, Apurv
Chandola, Sudarsh Menon, Mohit Abraham, Bhanudey Kanwar,
Arvind Kr. Ray, A. K. Singh, for the appearing parties, Dr.
Subramanian Swamy, Supriya Manan, lshkaran S. Bhandari.
Amod Kr. Kanth and Madhukar Sharma, Appellants-in-Person
The Judgment of the Court was delivered by
RANJAN GOGOi, J.
SLP (Crl.) No.1953 of 2013
1. On 16th December, 2012 a young lady (23 years in age)
and her friend were returning home after watching a movie in
A
B
c
a multiplex located in one of the glittering malls of Delhi. They
boarded a bus to undertake a part of the journey back home.
While the bus was moving, 5 persons brutally assaulted the
D
young lady, sexually and physically, and also her friend. Both
of them were thrown out of the bus. The young lady succumbed
to her injuries on 29.12.2012.
2. Five persons were apprehended in connection with the
E
crime. One of them, identified for the purpose of the present
case as Raju, was below 18 years of age on the date o.f
commission of the crime. Accordingly, in compliance with the
provisions of the Juvenile Justice Act, 2000 (as amended and
hereinafter referred to as 'the Act') his case was referred for
F
inquiry to the Juvenile Justice Board. The other accused were
tried in a regular sessions court and have been found guilty,
inter alia, of the offences under Section 376 (2){g) and Section
302 of the Indian Penal Code, 1860 (for short "the Penal
Code"). They have been sentenced to death by the learned trial
G
court. Their appeal against the aforesaid conviction and the
sentence imposed has since been dismissed and the death
penalty has been confirmed by the High Court of Delhi.
3. Before the Juvenile Justice Board to whom the case of
290
SUPREME COURT REPORTS [2014) 9 S.e:-R.
A Raju was referred for inquiry, the petitioners had filed
applications for their impleadment to enable ·them to
'prosecute' the juvenile alon{Jsi<W the public prosecutor. The
petitioners also claimed that, on a proper interpretation of the
Act, the juvenile was not entitled to the benefits under the Act
B but was liable to be tried under the penal law of the land in a
regular criminal court alongwith the other accused.
4. According to the petitioners, after an elaborate hearing,
the Board had fixed the case on 25.01.2013 for pronouncement
of order on the question of maintainability of the application filed
C by the petitioners and also on their prayer for impleadment.
However, insofar as the interpretation of the provisions of the
Act for determination bf the question whether the offence(s)
allegedly committed by the juvenile is to be inquired into by the
Board or the juvenile is required to be tried in a regular criminal
D court is concerned, the Board had expl'i:!ssed its inability to
decide the same and had directed the petitioners to seek a
authoritative pronouncement on the said issue(s) from the High
Court.
E
5. Accordingly, the petitioners had instituted a writ
proceeding before the High Court of Delhi, which was
registered as Writ Petition {Crl.) No. 124 of 2013, seeking the
following reliefs :-
"i.
Laying down an authoritative interpretation of
F
Sections 2(1) and 2(k) of the Act that the criterion
of 18 years set out therein does not comprehend
cases grave offences in general and of heinous
crimes against women in particular that shakes the
G
H
root of humanity in general.
ii.
That the definition of offences under Section 2(p)
of the Act be categorized as per grievousness of
the crime committed and the threat of public safety
and order.
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
291
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
iii.
That Section 28 of the Act be interpreted in terms
A
of its definition, i.e., alternative punishment and
serious offences having minimum punishment of
seven years imprisonment and above be brought
outside its purview and the same should bf; tried
iv.
v.
by an ordinary criminal court.
.
. j .
Incorporating in the Act, the International concept'
of age of criminal responsibility and diluting the
blanket immunity provided to the juvenile offender
on the basis of age.
That the instant Act be read down in consonance
with the rights of victim as protected by various
fundamental rights including Article 14 and 21 of
the Constitution of ln(iia'." (sic)
6. The High Court by its order dated 23.01.2013
'dismissed the writ petition holding that against the order of the
Juvenile Justice Board the alternative remedies available under
B
c
..
D
the Act should be exhausted in the first instance and in the
course thereof the question of interpretation of the provisions
E
of the Act can well be considered.
7. On the very next day, the Board'by an elaborate order
dated 24.01.2013 rejected the prayer of the petitioners for
impleadment in the proceeding against the delinquent and
seeking participation therein. in the aforesaid circumstances,
F
on 19.02.2013, Special Leave Petition (Crl.) No.19~3 of 2013
was lodged before this Court challenging the aforesaid order
of the High Court of. Delhi.
8. The maintainability of the Special [eave Petition was
G
seriously disputed by the respondent No.1 i.e. juvenile Raju as
well as the Union of India. In support, it was, inter alia,
contended that the administration of criminal justice. in India
does not envisage the role of a third party/stranger. Primarily,
it is the State which is entrusted with the duty of prosecution in
H
292
SUPREME COURT REPO~TS [2014] 9 S.C.R.
A
the discharge of which a limited role so far as the complainant/
first informant of arj offence is concerned and that too in
specified situatio~,' is contemplated by the provisions of the
Code of Crimina,l;.Procedure. The preliminary objection of the
respondents to the.fnaintainability of the Special Leave Petition
B was heard at lengtlpby,this Court and by order.dated
c
D
E
F
G
H
22.08.2013 it was held as follows:
"All that the petitioners seek is an authoritative
pronouncement Of the true purport and effect of the
different provisions of the JJ Act so as to take a juvenile
out of the purview of the· said Act in case he had
committed an offence, which, according to the petitioners,
on a true interpretation of Section 2(p) of the Act, is
required to be identified and distinguished to justify a
separate course of action, namely, trial in a regular Court
of law as a specific offence under the Penal Code and
in accordance with the provisions of the Code of Criminal
Procedure. The adjudication that the petitioners seek
clearly has implications beyond the case of the first
respondent and the proceedings in which he is or may :
be involved. In fact, interpretation of the relevant
provisions of the JJ Act in any manner by this Court, if
made, will not be confined to the first respondent alone
but will have an effect on all juveniles who may come into
conflict with law both in the immediate and distant future.
If we are to view the issue of maintainability of the present
proceeding from the aforesaid perspective reference to
the Ca$e of the first respondent in the pleadings must be
understood to f?e illustrati.ve. If this Court is to interpret
the provisions of the Act in the manner sought by the
petitioners, the possible effect thereof in so far as the first
Respondent is concerned will pale into insignificance in
the backdrop of the far reaching consequences that such
an interpretation may have on an indeterminate number
of persons not presently qefore the Court. We are,
therefore, of the view that it would be appropriate for us)
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
293
,JUVENILE JUSTICE BOARD [RANJAN qOGOI, J.]
hold that the special leave petition dees not suffer from
A
the vice of absence of locus on the part of the petitioners
so as to render the same not maintainable in law. We,
therefore, will proceed to hear the special Jsave petition
on merits and attempt to provide an answer to the several
questions raised by the pfJtftioners before us," (sic)
s
9. Notice in the special leave petition was accordingly
issued in response to which detailed counter affidavit has been
filed on behalf of the Union as well as the respondent-juvenile
Raju. In addition, Crl. Misc. Petition No.22586/2013 (by Smt.
C
June Chaudhari, Senior Advocate), CrL Misc. Petition
No.25075/2013 (on behalf of Centre for Child and the Law,
National Law School of India University and Ors.), Crl. Misc.
Petition No.15792/2013 (on behalf of Prayas Juvenile Aid
Centre, Tughlakabad, Institutional Area, New Delhi) and Crl.
Misc. Petition No.23226/2013 (by Dr. Madhuker Sharma) for
D
interventions have been filed, all of which have been allowed.
The matter was elaborately heard on different dates by this
Court in the course of which written notes and arguments as
well as documents relevant to the issues have been placed
before the Court by the contesting parti~s. In view of the
E
elaborate consideration on the basis of the arguments
advanced and the materials placed we deem it proper to grant
leave to appeal and to decide the case on merits upon full
consideration of the rival contentions.
Writ Petition (Crl.) No.204 of 2013
10. This writ petition has been filed by the. parents of the
victim of the incident that had occurred on 16.12.2012 seeking
· the following reliefs :
"(i) a Direction striking down as unconstitutional and void
the Juvenile Justice (Care and Protection of Children) Act
2000 (Act No.56 of 2000) to the extent it puts a blanket
ban on the power of the criminal courts to try a juvenile
F
G
H
294
A
B
SUPREME CQURT REP.ORTS [2014) 9 S.C.R.
offender for offences committed under the Indian Penal
Code, 1860; and
(ii) a Direction that the Respondent No.2 be tried forthwith
by the competent criminal court for the offences against
the daughter of the petitioners in F.l.R. No.413112, P.S.
Vasant Vihar, New Delhi under sections 30213651
376(2)G/377!307/ 394/395!3~7139614121201! 1208134
/PC."
11. The issues raised being similar to those arising in
C
Special Leave Petition (Crl.) No.1953 of 2013, both cases
were heard together and 'are being disposed of by means of
this common order.
12. We liave heard Dr. Subramanian Swamy, the first
D appellant appearing in person and also representing the other
appellants as well as Dr. Aman Hingorani, learned counsel
appearing on behalf of the petitioners in W.P. (Crl.) No.204 of
2013. We have also heard Shri Sidharth Luthra, learned
Additional Solicitor General, appearing for the Union of India
E
and Shri A.J. Bhambhani, learned counsel appearing for the
juvenile respondent No.1-Raju apart from the intervenors
appearing in person or through their respective counsels.
13. Dr. Subramanian Swamy has, at the outset, clarified
that he is neither challenging the provisions of Section 2(k) and
F
2(1) of the Act nor is he invoking the jurisdiction of the Court to
strike down any other provision of the Act or for interference of
the Court to reduce the minimum age of juveniles fixed under
the Act as 18· years. Wliat Dr. Swamy has contended is that
having regard to the object behind the enactment, the Act has
G to be read down to· understand that the true test of "juvenility"
is not in the age but in the level of mental maturity of the
offender. This, it is contended, would save the Act from
unconstitutionality and also further its purpose. The Act is not
intended to apply to serious or heinous crimes c~mmitted by
H
a juvenile. The provisions of Sections 82 and 83 of the Indian
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
295
JUVENILE JUSTICE BOARD (RANJAN GOGOi, J.]
Penal Code have been placed to contend that while a cfiiid
A
below 7 cannot be held to be criminally liable, the criminality of
those between 7 and 12 years has to be judged by the level of
their mental maturity. The same principle would·apply to all
children beyond 12 and upto 18 years also, It is contended. This
is how the two statutes i.e. Indian Penal Code and the Act has
B
to be harmoniously understood. The provisiol)s of Section 1(4)
of the Act which makes the provisions of the Act applicable to
all cases of detention, prosecution and punishment of juveniles
in conflict with law, to the exclusion of all other laws, would be
unconstitutional if the Act is not read down. Specifically, Dr. c
Swamy contends that in that event the Act will offend Article 14 ·
of the Constitution as all offenders below the age of 18 years
irrespective of the degree/level of mental maturity and
irrespective of the gravity of the crime committed would be
treated at par. Such a blanket treatment of all offenders below
D
the age of 18 committing any offence, regardless of the
seriousness and depravity, is wholly impermissible under our
constitutional scheme. the non-obstante provi~ions contained
in Section 1 (4) of the Act as well as the bar imposed by Section
7 on the jurisdiction of the criminal court to try juvenile offenders
cannot apply to serious and heinous crime committed by
E
juvenHes who have reached the requisite degree of mental
maturity, if the Act is to maintain its constitutionality. Reliance
Is· also placed on Essa @ Anjum Abdul Razak Memon vs.
State of Maharashtra1 to contend that the purport and effect of
Section 1 (4) of the Act must be understood in a limited manner.
F
14. By referring to t,he provisions of the United Nations
Standard Minimllm Rules for the Administration of Juvenile
Justice, 1985. (Beijing Rules); t~e Convention of the Rights of
the Child, 1990 (CRC) and the LJnited Nations Rules for the
G
Protection of Juveniles Deprived of their Liberty, 1990(Havana
Rules), Dr. Swamy ha's contended that the international
commitments entered into by India obliges it to set up a
1.
(2013) 3 SCALE 1.
H
296
SUPREME COURT REPORTS [2014] 9 S.C.R.
A
particular framework to deal with juvenile offenders and such
obligations can be more comprehensively met and effectuated
by understanding the Act in the aforesaid manner. The practice
in vogue in several foreign jurisdictions, particularly, in the U.K.,
.USA and Canada for adjudicating criminal liability of young
8
offenders has also been placed before ~he C.o.urt. Specifically,
it is pointed out that. the practice of statutory exclusion which
ensures that perp'etratot'.is of certain grave offences are
prosecuted as adults; 'judicial waiver', granting discretion to
special juvenile courts fo waive jurisdiction and transfer the
C juvenile's case to an ordinary court of law and also the policy
of concurrent jurisdiction of botfl the ordinary and juvenile courts
giving discretion to the prosecutor to initiate proceedings in the
more suitable court are followed in such jurisdictions. Shri
Swamy has also- suggested that Section 28 of the Act be read
0
together with Section 15 to enable the alternatively higher
punishment under other State/Central enactments, such as the
IPC to be awarded to a juvenile offender. It is argued that this
would incorporate the policy of concurrent jurisdiction of both
ordinary criminal courts and JJ Boards.
E
15. Legislative overreach in enacting the Act is the core
argument advanced on behalf of the petitioners in Writ Petition
(Crl.) No.204 of 2013. Dr. Aman Hingorani, learned counsel
urges that the ban on jurisdiction of criminal courts by Section
7 of the Act is unconstitutional inasmuch as it virtually ousts the
F criminal justice system from dealing with any offence committed
by a juvenile. Parliament cannot make a law to oust the judicial
function of the courts or even judicial discretion in a matter: which
falls within the jurisdiction of the courts. Reliance in this regard
is placed on the judgments of this Court in the case of Mithu
G
Vs. State of Punjab2 and Dadu Vs. State of Maharashtra3• It
is argued that what the Actc;:ontemplates in place of a regular
criminal trial is a non-adversarial inquiry against the juvenite
where the prime focus is not on the crime committed but on
2.
(1983) 2 sec 277.
H
3.
(2000) a sec 437.
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
297
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.].
the reasons that had led the juvenile to such conduct. The
A
maximum power of 'punishment', on proof of guilt, is to send
the juvenile to a special home for three years. The entire
scheme under the Act being substantially different from what ·
is provided by the Code of Criminal Procedure for investigation
of offences and for trial and punishment of offenders, it is
submitted that the Act offends a core constitutional value
namely, the existence of a criminal justice system. The
proceedings against the juvenile Raju held by the JJ Board are,
therefore, null and void and the said juvenile is liable to be tried
B
by a competent criminal court in accordance with the procedure
C
prescribed. In this regard, it is also submitted that the concept
of double jeopardy under Article 20(3) of the Constitution and
Section 300 of Penal Code will have no application inasmuch
.as the proceedings before the JJ Board did/does not amount
to a trial. C0ntentions somewhat similar to what has been
D
advanced by Dr. Swamy to explain the degree of constitutional
flexibility that the Act would enjoy has also been urged by Dr.
Hingorani who however goes a step forward to contend that the
decision in Sa/ii Bali vs. Unioif.. f?fJndia4will not be an inhibition
for the Court to answer the questiqa(s) raised as not only the
issues arising in Sa/ii Bali (supra) are different but the said
decision is founded on an entirely different legal perspective.
E
16. Shri Anoop G. Chaudhary, learned senior counsel
appearing for the intervenor Smt. June Chaudhari and Dr.
Madhuker Sharma, intervenor, appearing in person. have
F
supported the case projected by Dr. Swamy and Dr. Aman
Hingorani, noticed above.
17. The arguments advanced on behalf of the appellants
as well as the writ petitioners are hotly contested. Shri Sidharth
Luthra, learned Additional Solicitor General submits that what
G
is contemplated by the Act is in furtherance of the country's
obligations arising from a series of international conventions
to which India is a signatory. The Act is an expression of
4.
(2013) 4 sec 10s.
H
298
SUPREME COURT REPORTS [2014] 9 S.C.R.
A
legislative wisdom to treat all persons below 18 as juveniles
and to have an alternate system of dealing with such juveniles
who come into.conflict with law. Shri Luthra has submitted that
the constitutional validity of the Act has been upheld by a
Coordinate Bench in Sa/ii Bali (supra). Shri Luthra has also
8
submitted that psychological/mental, intellectual and emotional
maturity of a person below 18 years cannot be objectively
determined on an individual or case to case basis and the
fixation of the Minimum Age of Criminal Responsibility (MACR)
under the Act is a policy decision taken to give effect to the
C ·country's international commitments. In so far as the specific
contentions advanced on behalf of the writ petitioners in W.P.
(Crl.) No.204 of 2013 is concerned, Shri Luthra has submitted
that the Act does not provide a blanket immunity to juvenile
offenders, as contended. What the Act contemplates is a
0
different procedure to deal with such offenders. If found guilty,
they are subjected to a different scheme of punishment. The
learned counsel appearing on behalf of the juvenile Raju, while
supporting the contentions advanced by Shri Luthra, has further
submitted that the United Nations Convention on the Rights of
the Child, 1990 read with the concluding Resolution of the
E
Committee on Child Rights (constituted under the UN
Convention) of the year 2000 qua India and the General
Resolution of the year 2007 clearly contemplate the MACR as
18 years and mandates member States to act accordingly.
Learned counsel on the strength of the elaborate academic and
F
research work placed on record has tried to persuade the Court
to take the view _that :-
G
H
(1)
Countries like U.K. Canada and USA have
departed from the obligations under the UN
Convention and are in breach of their international
commitments. The incidence of crime by juveniles
in those countries is very high which is not so in
India. It is submitted that, of late, a re-thinking on
the issue is discernible to demonstrate which
reliance is placed on some recent pronouncements
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
299
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
of the US Supreme Court, details of which will be
A
noticed hereinafter.
(2)
That the level qf mental/intellectual maturity in any
given case cannot be determined with any degree
of accuracy and precision and the results vary from
case to case and from individual to individual. A
system which provides for an option to refer a
juvenile to a regular court, therefore, ought not to be
accepted as no objective basis for such reference
exists.
B
c
18. Shri Amod Kanth, representing Prayas Juveniles Aid
Centre and learned counsel for the intervener Centre for Child
and the Law, National Law School of India University and
others have supported the stand taken, by the learned
Additional Solicitor General. Elaborate written submissions
D
have been filed to substantiate the argument that having regard
to expert/psychological/medical opinion' available the MACR
cannot be determined, with any acceptable degree of precision,
on the basis of a case to case study for which reason the
legislative wisdom inherent in the Act must be accepted and
E
respected. Statistics of the crimes (Crime rate) corrffnitfed by
juvenile offenders have also been brought on record to contend
that the beneficial nature of the legislation does not call for any
relock, even on the touchstone of Gonstitutional permissibility.
19. At the very outset, two initial hurdles to the present
adjudication, set up by the respondents, may be, conveniently
dealt with. The first is that the constitutional validity of the Act
F
has been upheld in Sa/if Bali (supra) and it is not necessary to
revisit the said decision even if it be by way of a reference to
a larger Bench. The second is with regard to t_he
G
recommendations of the Justice J.S. Verma Committee
following whictl recommendations, the Criminal Law
Amendment Act, 2013 has been enacted by the legislature
fundamentally altering the jurisprudential norms so far as
H
300
SUPREME COURT REPORTS [2014) 9 S.C.R.
A offences against women/sexual offences are concerned.
20. In Safi/ Bali (supra) the constitutional validity of the Act,
particularly, Section 2(k) and 2(1) thereof was under challenge,
inter alia, on the very same grounds as have now been
B advanced before us to contend that the Act had to be read
down.In Salil Bali (supra) a coordinate Bench did not consider
it necessary to answer the specific issues raised before it and
had based its conclusion on the principle of judicial restraint
that must be exercised while examining conscious decisions
that emanate from collective legislative wisdom like the age of
C a juvenile.,Notwithstanding the decision of this Court in Kesho
Ram and 'others Vs. Union of lndia5 and Others holding that,
"the binding effect of a decision of this Court does not depend
upon whether a particular argument was considered or not,
provided the point with reference to which the argument is
D advanced subsequently was actually decided in the earlier
decision ... " (para 10) the issue of res judicata was not even
remotely raised before us. In the field of public law and
particularly when constitutional issue~, or matters of high public
interest are involved, the said princfpte would operate in a
E somewhat limited manner; in any case,
1the petitioners in the
pres~nt proceeding were not parties to the decision rendered
in Safi/ Bali (supra). Therefore, we deem it proper to proceed,
not to determine the correctness of the decision in Salil Bali
(supra) but to consider the arguments raised on the point of law
F arising. While doing so we shall certainly keep in mind the
course of action that judicial drscipline would require us to
adopt, if 'need be. Though expressed in a somewhat different
context we may remind ourselves of the observations of the
Constitution Bench of this Court in Natural Resources
G Allocation, In Re, Special Reference No.1 of 20126 extracted
below:-
"48. 2. The second limitation, a self-imposed rule of
5.
(1989) 3 sec 151.
H e.
(2012) 10 sec 1.
DR._ SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
301
JUVENILE JUSTICE BOARD [RANJAN GOGOi, J.]
judicial discipline, was that overruling the opinion of the
A
Court on a legal issue does not constitute sitting in
appeal, but is done only in exceptional cirCU('1$tances~
such as when the earlier decision -is- per 1r1"6ufiam or is
delivered in the absenee of reTe'llaf)f or material facts. or
if it is manifestly wroiig and capable of causing public
B
. • ' • r mischief. For this proposition, the Court relied upon the
judgment in Bengal Immunity case (AIR 1955 SC 661)
wherein it was held that when Article 141 lays down that
the law declared by this Court shall be binding on all
courts within the teriitory of India, it quite obviously refers
C
to courts other than this Court; and that the Court would
normally follow past precedents save and except where
it was necessary to reconsider the correctruu;s of law laid
down in that judgment. lnJact, th'e overr<J;Jling of a
principle of law is not an outcome of appellatf;:jurisdiction
D
but a consequence of its inherent power. · ThJs, inherent
power can be exercised as lo11g as a previous ·decree vis-
. a-vis a /is inter partes is not affected. It is the '~ttiirppt to
overturn the .decision of a previous case ·tHat is
problematic, which is why the Court observed that:
'
[Cauvery (2) case (1993 Supp (1) SCC 96 (2), SCC p.
145, para 85] I
"85 . ... Under the ·constitution such appellate jurisdiction
does not vest in this Court, nor can it be vested in it by
the President under Article 143. "
-.
21. The issues arising and the contentions advanced
therefore will have to be examined from the aforesaid limited
·perspective which we are inclined to do in view of the
importance of the questions raised.
22. The next issue that would need a resolution at the
threshold is the effect of the recommendations of the Justice
J.S. Verma Committee constituted by the Government of India
by Notification dated 24th December, 2012 following the very
same incident of 16th December 2012 so far as the age of a
E
F
G
H
302
SUPREME COURT REPORTS [2014] 9 S.C.R.
A juvenile is concerned. Th~ terms of reference to the Justice J.S.
Verma Committee were indeed wide and it is correct that the
Committee did not recommend reduction of the age of juveniles
by an amendment of the provisions of the Act. However, the
basis on which the. Committee had come to the above
B
conclusion is vastly different from the issues before this Court.
The recommendations of the Justice J.S. Verma Committee
which included the negative covenant so far as any amendment
to the JJ Act is concerned was, therefore, in a different context
though we must hasten to add the views expressed would
C
undoubtedly receive our deepest consideration while dealing
with the matter in hand ..
D
23. The stage is now appropriate to have a look at the
international conventions, holding the field, to which India has
been a signatory ..
The UN Standard Minimum Rules for the Administration
of Juvenile Justice ("the Beijing Rules") were adopted by the
General Assembly of the United Nations in 1985. Rule 2.2(a)
defines a juvenile as a child or young person who, under the
E
respective legal system, may be dealt with for an offence
differently than an adult. Rule 4.1 set out below mandates
Member States to refrain from fixing a minimum age of criminal
responsibility that is too low, bearing in mind the facts of
emotional, mental and intellectual maturity.
F
"4.1 In those legal systems recognizing the concept of the
age of criminal responsibility for juveniles, the beginning of that
age shall not be fixed at too low an age level, bearing in mind
the facts of emotional •. ~ental and intellectual maturity."
G
24. The Beijing Rules take into account penological
H
objectives in addition to rehabilitation of the offender. In Rule
17.1, the guiding principles of adjudicating matters involving
juveniles are enlisted:
(a)
The reaction shall always be proportional to not only
DR. SUBRAMANIAN SWAMY v. RAJU THR. MEMBER
303
JUVENILE JU8'TICE BOARD [RANJAN GOGOi, J.]
the circumstances and the gravity of the offence, but
A
also to the circumstances and needs of the juvenile
(b)
as well as to the needs of society;
Restrictions on personal liberty of the juvenile shall
be imposed only after careful. consideration and
shall be limited to the possible minimum;
B
(c)
Deprivation of personal liberty shall not be imposed
unless the juvenile is adjudicated of a serious act
involving violence against another person or of
persistence in committing other serious offences
C
and unless there is no other appropriate response;
(d)
The well-being of the juvenile shall be the guiding
factor while considering his case.
It is clear that the Beijing Rules do not prohibit detention
D
of a juvenile if he is proved to have committed a violent, serious
offence, or to have repeatedly committed such serious offences
though Rule 17.2 of the Beijing Rules prohibits the imposition
of capital punishment of juveniles. Thus, the Rules do not
advocate leniency in dealing with such offenders but only
E
contemplate that detention be limited to the most serious cases
where no other alternative is found appropriate after careful
consideration.
25. The Convention on the Rights of the Child, 1990
F
("CRC"), in. Article 1, adopts a chronological definition of a
"child", viz.