Case Study: Salil Bali v. Union of India and Another

By Shashwat Srivastava 8 Minutes Read

CITATION: (2013) 7 SCC 705

Bench: CJI Altamas Kabir, J. SS Nijjar, J. J Chelameshwar

Facts:

A juvenile of age 17½ was tried under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, for committing gang rape of a woman inside moving vehicle on 16-12-2012. The Petitioner Mr. Salil Bali urged that it was necessary for the provisions of Section 2(k), 2(l) 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. Referring to the Section 82 of Indian Penal Code which gives immunity to the child below seven years of age from any offence and Section 83 of the Code which gives immunity to the child above seven years of age and under twelve, who does not understand the consequences of the act, Mr. Bali pointed  out that age of responsibility under criminal jurisprudence in India had been recognised as 12 years.

Petitioner referred to the Criminal Justice System of different countries, such as United States of America, Great Britain and Canada. In Canada the age of Criminal responsibility has been fixed at twelve years. Comparing the position in USA, the lowest being six years in North Carolina. The age of criminal responsibility in England and Wales is ten years and those below ten years are considered to be doli incapax. 

Mr. Bali argued that the legal circumstances prevailing in other parts of the world wherein the age of criminal responsibility has been fixed between ten to sixteen years, the provisions of Sections 15 and 16 of the Act needed to be reconsidered in regard to the level of punishment in respect of heinous offences. The writ petition was dismissed by the Supreme Court on following grounds:

• The incident occurred on the night of 16-12-2012 was maniacal, but the role of juvenile is yet to be established. The report of Crimes Report Bureau shows that the numbers of crimes committed by the juveniles comes to about 2% of the countries crime rate.
• The essence of Juvenile Justice Act, 2000 and Juvenile Justice Rules, 2007 framed thereunder is “Restorative” not “Retributive”. Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006 and juvenile Justice (Care and Protection of Children) Rules, 2007, are based on sound International Principle and provisions contained in the Constitution of India.
• Increase in the number of crimes, in recent times, by adults and not by juvenile. The decision of Government to raise the age limit from sixteen to eighteen in Juvenile Justice Act, 2000, strongly favour to retain Section 2(k) and 2(l) in the manner in which it exists in the statute.

Key Law Position established in the case:

1. Can a juvenile be set free after attaining majority while his sentence has not been completed?
   
   No.
   
   Prior to the amendment of 2006, Section 15(1)(g) of Juvenile Justice Act, 2000 allows a juvenile to be set free on attaining majority even if sentence is not completed in heinous crimes. The amendment of 2006 came into force on 22-08-2016, the position of sentencing under Section 15 was also amended. Now it makes it clear that a juvenile has to complete whole of the sentence even after attaining the majority.
   
   The court said that “one misunderstanding of the law relating to the sentencing of juveniles, needs to be corrected… It was generally perceived that a juvenile was free to go, even if he had committed a heinous crime, when he ceased to be a juvenile. The said understanding needs to be clarified on account of the amendment which came into force with effect from 22.8.2006, it makes it clear that even if a juvenile attains the age of eighteen years within a period of one year he would still have to undergo a sentence of three years, which could spill beyond the period of one year when he attained majority.”

• Is it justified to reduce the upper age limit of juvenile from 18 to 16 years under the Juvenile Justice Act?
  
  No.
  
  The court observed that the Juvenile Justice Act and Juvenile Justice (Care and Protection of Children) Rules are based on sound principles contained in the provisions of the Indian Constitution and various International conventions. The Constitution guarantees several rights to the children and enables the government to make special provisions for children. The court said in para 63, “The essence of the Juvenile Justice (Care and 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 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.”
  
  Several international instrument like Beijing Rules, Riyadh Guidelines and Havana Rules recognise the special vulnerability of children. Article 1 of Convention of the right of the Child provided the basis of 18 years as the upper age limit for children under the Juvenile Justice Act. This upper limit of 18 years is also supported by the scientific data, shows that brain continues to develop till he reaches at least the age of 18. For these reasons the court stated that, in absence of proper data, it was unwilling to interfere with the provisions of Juvenile Justice Act and its Rules.

Shashwat Srivastava