18: Proper Age of Majority??

The gang rape case in a moving bus in Delhi in December 2012, has stirred the conscience of the society to such an extent that it led to filing several Writ Petitions in the Supreme Court to reduce the age of majority owing to the fact that a minor was involved in the said gruesome crime. These Writ Petitions came to be heard jointly with the Writ Petition of Salil Bali and vide Order dated 17th July 2013, the Hon’ble Supreme Court dismissed all the Writ Petitions and held that the age of majority i.e. 18 years for the purpose of Juvenile Justice Act, (Care and Protection of Children) Act, 2000, to be not unconstitutional. 

The decision, although based on several sound principles of law, international conventions, empirical data and studies, needs serious consideration giving consideration to realities, latest research and scientific studies. The decision of dismissing the Writ Petitions was largely based on the fact that the data presented before the Hon’ble Supreme Court was not sufficient to hold that there are any shortcomings in the Juvenile Justice Act and that the age of majority at 18 years is unconstitutional. It is unfortunate but true that even the hands of Judiciary are tied by the Constitutional mandates and Judiciary is unable to interfere in the policy decisions such as age of majority unless it is proved to be unconstitutional. 

However, it is high time that the Hon’ble Supreme Court understands that the material presented before it is not hundred percent flawless, unbiased or free of errors. To overcome these difficulties and to have unbiased data/reports/studies for proper adjudication, a mechanism needs to be devised. It is a natural tendency, right from the stage of inspection of a child’s room till even accreditation of colleges and compliance of huge industries, to have things prepared specially for inspection and temporarily rectify shortcomings to fall within the acceptable parameters. Similar may be the case of remand homes meant for juveniles in conflict with law, which allegedly have all the facilities for counseling, psychiatric/psychological evaluation and every such requirement of law when the seniors come to visit, but in reality are worse than jails where juveniles are abused mentally, physically and sexually by the officials of remand homes themselves. Are such institutions meant to reform the juvenile? 

In a country, which is sadly marred by corruption and filthy politics, the Judiciary needs to have a secret mechanism of obtaining actual data and not what the Government employees present to save their own jobs. e.g. in the present case, there was no proper data to show, how many juveniles who had been released from remand homes after “corrective efforts” have turned into responsible citizens and how many have gone ahead to continue in the path “conflicting with law”. Unless and until there is proper data, studies and researches that are free from all levels of bias, corruption and politics, justice can never be properly done. After all, it the requirement of jurisprudence that justice must not only be done, it must be seen to be done. 

Another lacuna, which seems apparent from the face of it but always seems to escape the wise judicial mind is the comparison with legal systems and jurisprudence of nations which have an entirely different social upbringing, sense of responsibilities, economic and social structure than our nation. In the instant case also, several comparisons were made to laws of the United Kingdom, the United States of America and Canada. It is to be understood that the criminal tendencies of any human being are largely dependent on factors such as education, poverty, discrimination, persecution, hunger and so forth. So, blind comparison of our system with systems foreign to such problems is not only un-meaningful but also fatal to the cause. 

Lastly, it is to be considered that keeping a strict age of maturity, is not a proper parameter even going by the scientific studies and empirical data. The problem is also coupled with the fact that till date there are hundreds of birth taking everyday which are not properly documented and their age at the time of such crime can only be a rough estimate based on the frail memory of someone else. Also, it is a well established principle of jurisprudence that a person does not mature overnight on the eve of his 18th birthday. It can never be conclusively held that all persons below a certain age are incapable of understanding consequences of their actions. On the contrary it cannot also be held that persons above a certain age are fully capable of doing so. There have been instances in our own country where children of tender age have achieved miraculous feats which people of so-called mature age have not been able to do so after putting years of efforts. Therefore, there is definitely a need for psychological analysis of a juvenile in conflict with law to determine whether the particular individual is capable of reformation or whether he needs to be treated at par with hardened criminals. 

With everything being said, it is in the interest of the nation that the Government, instead of blindly opposing every Writ Petition filed against it, rather gets in the healthy practice of understanding why a certain group of people is aggrieved by a certain law and helps the Courts in coming to logical solution of the problem in hand. The grief in the present case, is not miniscule, as evident from the level of protests and deliberations and therefore, should not be ignored. After all, heeding to the voice of public, is the true spirit of democracy!

Criminals barred from Politics??

The Headline that made almost every citizen of our nation, that at this time is badly suffering from the epidemic of corruption, take a sigh of relief is the Hon’ble Supreme Court decisions that disqualifies convicted Politicians from continuing to hold a post in Parliament/State Legislature. This landmark judgment was delivered on 10th July 2013, by the Division Bench comprising of Mr. Justice A. K. Patnaik and Mr. Justice Sudhansu Jyoti Mukhopadhaya in the case of Lily Thomas Versus Union of India & Others.  

The main question that came up before the Hon’ble Supreme Court in this Public Interest Litigation was whether the Parliament had the legislative competence to carve out an exception namely, Section 8 (4) of the Representation of the People Act, 1951, which allows a sitting Member of Parliament/Legislative Assembly/Legislative Council to continue in their seat till the disposal of appeals from their conviction. In case the Parliament had the legislative competence to enact such a provision, the question whether the same is Constitutional or not, would have also arisen. 

The Hon’ble Supreme Court has held that the affirmative words used in Articles 102(1)(e) and 191(1)(e) of the Constitution of India, confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have effect. Accordingly, the provision under question, which does the exact opposite, is beyond the powers conferred on Parliament by the Constitution. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.  

The Hon’ble Supreme Court has further clarified, much to the relief of already convicted sitting members of Parliament and State Legislature, who have already filed appeals or revisions which are pending; that such members are saved from the disqualification by the declaration now made by the Hon’ble Supreme Court in this judgment. 

However, if any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which has been declared as ultra vires the Constitution by this judgment, notwithstanding that he files the appeal or revision against the conviction and/or sentence. 

A quick analysis of this judgment reveals that: 

• This disqualification applies only in case a member is convicted for the offences mentioned in clauses (1), (2) and (3) of Section 8 of the Representation of the People Act and punished/fined as provided thereunder.
• The offences enumerated in Section 8 of the Act are exhaustive and not indicative. Therefore, convictions of members for offences not listed in Section 8 of the Act would not necessarily mean immediate disqualification.  
• Members, who are henceforth convicted shall be immediately disqualified whether or not they prefer appeal against such conviction. Similarly, those Members who have not yet preferred Appeal/Revision shall also stand disqualified immediately. Members who have already preferred appeal (till 10th July 2013) shall not be disqualified because of this judgment.  
• Members cannot claim immunity from disqualification by getting the disqualification stayed in an appeal or revision as the disqualification shall immediately take place on the date of conviction.