New Delhi: The Delhi High Court on Wednesday issued notice to the central government on a petition seeking to exclude from the purview of the Juvenile Justice Act those above 16 years committing serious crimes like rape and murder.
A division bench of Chief Justice D. Murugesan and Justice V.K. Jain issued the notice through the ministries of parliamentary affairs and law and justice, and asked them to file their response by Feb 14.
The public interest litigation (PIL) sought to declare as ultra vires some provisions of the Juvenile Justice Act, alleging that recent incidents showed that those aged 16 years were involved in "serious crimes" and are "quite well developed".
"They do not need the care and protection of the society, rather the society needs care and protection against them," read the PIL.
Advocate R.K. Kapoor said if juveniles above 16 years were involved in "heinous crime" like rape and murder, they should not be treated as juveniles and be given harsher punishment like adults.
He added that those above 16 should not be allowed to escape "life term" and "death penalty".
The petition also seeks a direction for amendment to the act to provide for harsher punishment to the rape convicts.
Appearing for the central government, Additional Solicitor General Rajiv Mehra told the court that he "will take instruction from the government for quashing of certain provisions in the JJ Act."
Mehra submitted that "Justice J.S. Verma Committee has already been constituted for the purpose".
The government has set up a three-member Justice J.S. Verma Committee to give recommendations on amending laws to provide speedier justice and enhanced punishment in sexual assault cases.
The PIL would also be significant in the Dec 16 gang-rape and murder of a 23-year-old physiotherapy intern in Delhi, where the investigation has revealed that a minor, claiming to be 17, was allegedly the "most brutal" among the six accused.
The petition was filed by a woman advocate lawyer, Shweta Kapoor, who noted that Section 16 of the JJ Act deals with the order which cannot be passed against a juvenile, including "sentence to death or life imprisonment".
"Issue direction declaring the provisions of Section 16(1) (1st part without proviso), the proviso to subsection 2 of Section 16, ...of the Juvenile Justice (Care and Protection of Children) Act, as ultra vires to the constitution..," the PIL said.
It stated that the provision also says that delinquents above 16 years shall be kept in special homes away from other minors and the period of detention would be of three years.
Another provision, however, says that a juvenile can only be kept at the special home till he attains 18 years of age.
Kapoor in his plea quoted a survey, which showed 67 per cent of all juvenile criminals arrested belong to the age group of 16 to 18 years and that since 2001 there has been a 188 per cent rise in crimes committed by juveniles.
In the Dec 16 gang-rape case, the minor accused was 17-and-half years old at the time of the crime and, if convicted, would come out of the special home after he become a major at 18.
He can neither be kept with minor convicts at the special home nor be sent to jail with adult convicts, as per JJ Act.
The PIL submitted: "The very fact that gruesome acts and heinous crimes have been committed by a number of juveniles between the age of 16 and 18 years would show that certain provisions of the act are ultra vires..."
"...the provisions of the Constitution of India in view of the fact that unequals have been clubbed together and given the same benefit though the same benefit cannot be given to the class of juveniles between the age of 16 to 18 years, who have been found involved in heinous and grave crimes," it said.
"A person committing a serious crime after attaining the age of 17 years and 364 days cannot be treated differently from the person who commits the same crime after attaining the age of 18 years and one day."
Delhi Police have filed the charge sheet in the gang-rape case and of the six accused, five are lodged in Tihar Jail. The Juvenile Justice Board would hear the case of sixth accused, who claims to be a minor.