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Nirbhaya Case: High Court & Apex Court Reject
Dec 22, 2015

Plea against Release of Juvenile Convict

On 21 December, the Supreme Court dismissed a plea of Delhi Commission for Women (DCW) Chairperson Swati Maliwal against the release of the juvenile offender in the December 16 gang rape case. A vacation bench comprising justices A.K. Goel and U.U. Lalit said, “there has to be a clear legislative sanction" in this regard. If anything has to be done, it has to be done according to the law. We have to enforce the law." 

  • The Special Leave Petition filed by DCW against the order of the Delhi High Court, which refused to restrain the release of the convict, was referred by Chief Justice of India T.S. Thakur before the vacation bench of the Apex court.

  • The bench did not agree with the submission that the juvenile offender can be subjected to the reformation process for a further period of two years under the juvenile law.

The counsel for DCW cited provisions to drive home the point that the delinquent juvenile can be allowed to go through the further reformation process. The bench said, "Will we not taking away somebody's right to life guaranteed under Article 21 of the Constitution. There is nothing in the law to provide that."

The counsel for DCW assailed the order of the Delhi High Court order saying that it did not consider the provisions of the Juvenile Justice (Care and Protection of Children) Act. He said that the juvenile, who is in conflict with the law, has to undergo the reformation process and there is an Intelligence Bureau report which indicates to the contrary and that the juvenile has been rather radicalised further.

  • Additional Solicitor General Pinky Anand, appearing for the Centre, supported the DCW's submissions saying that the juvenile can be kept under observation till such time the reformation process is on. 

  • The bench said, "You are supporting them without making the law. There must be some legislative sanction behind it. In no case it can get extended.We share your concern, but cannot do anything without legislative sanction. The period cannot be extended beyond three years."

  • The juvenile, who is now 20-years-old and was known to be the most brutal of the attackers, was released on December 20 and sent to an NGO. 

High Court also Declined: A couple of days before the Delhi High Court also declined to issue orders to ‘extend’ the juvenile’s stay, underlining that legal provisions under the Juvenile Justice (Care and Protection) Act did not allow for detention beyond three years. The bench of Chief Justice G. Rohini and Justice Jayant Nath said, “Having regard to the fact that the maximum stay that can be directed in the Special Home under Section 15(1) of the Act is three years and that respondent No.1 would be completing the period of three years by 20 December, there cannot be any direction to continue his stay in the Special Home beyond this date.”

It is to be noted that BJP leader Subramanian Swamy had filed a PIL before the High Court to extend the stay of the juvenile, claiming that there was no proof he had been ‘reformed’ and that intelligence reports had said he was being ‘radicalised’ while in detention.

The Central government had supported the plea. It had informed the court that the ‘post-release rehabilitation plan’ submitted by the Delhi government was ‘vague’ and did not give observations about the juvenile’s mental state.

The bench, in its observations, noted that the JJ Act and rules contain provisions for post-release monitoring and rehabilitation. It said the Act made it mandatory for the management committee established under the Act to periodically ‘review post-release or post-restoration follow-up’. 

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