Supreme Court Refuses To Entertain Petition Challenging Validity Of Section 15 JJ Act; Liberty Granted To Approach HC

The Supreme Court bench on Monday (January 8) dismissed a petition challenging the constitutionality of S.15 of the Juvenile Justice Act, 2015 (JJ Act) which provided for a preliminary assessment of Juveniles above the age of 16, charged with heinous crimes.

Refusing to entertain the petition, the bench comprising Chief Justice, DY Chandrachud and Justices JB Pardiwala and Manoj Misra however granted the petitioners the liberty to pursue their remedy under Article 226 before the Delhi High Court.

The advocate contended that through the petition they endeavoured to challenge certain retrogressive amendments to the JJ Act “which is leading to a dilution of the entire Juvenile Justice System in India”.

As per the main prayer, the petition sought the issuance of a writ of certiorari or any other writ or directions to strike down the amending provisions, or the misinterpretation and non-applications of the JJ Act along with the 2021 Amendment Act on the grounds of being violative of Articles 14,15,16,21,23 and 24 of the Constitution with respect to the juveniles .

When asked by the CJI why the High Court was not approached for this, the Petitioners contended that they were dealing with a broader range of issues including the contradictory interpretations given by 9 High Courts on the application of S. 438 of CrPC to the Juvenile Justice cases.

The bench observed that on a similar issue, a petition is already pending before the bench headed by Justice Hrishikesh Roy. The counsel added that the present petition also challenges the constitutionality of Preliminary assessment under S.15 of the JJ Act, a ground which has not been raised before any court so far.

The CJI verbally remarked, “ You can have the benefit of the Delhi High Court's judgement if you go to the High Court and get a judgement. We can allow you to file a petition before the Delhi High Court to challenge this under Article 226…let the High Court give you judgment, you can come here if something remains in the petition.”

The Court, observing that the petitioners can avail their efficacious remedy under Article 226 before the High Court, dismissed the same.

The two main grounds which the present petition urged pertained to firstly, the application of S.438 of CrPC providing anticipatory bail in the context of the special legislation of Juvenile Justice and secondly, the invalidity of S.15 of the JJ Act in light of Article 14 of the Constitution.

As per the petition, the JJ Act is silent on the applicability of section 438 of CrPC and grants liberty to seek a regular bail. The prohibition of "police custody" in the Juvenile Justice Act, which inherently involves "arrest" and placement in "police lock-up," renders the concept of anticipatory bail incompatible with the juvenile justice system.

While Section 438 of the Criminal Procedure Code seemingly offers legal safeguarding for a Child in Conflict with Law (CCL) or a juvenile, its application could potentially undermine the entire legal structure governing the juvenile justice system. In essence, the intent of anticipatory bail appears to extend beyond the boundaries set by the Juvenile Justice Act, raising concerns about its impact on the overall efficacy of the juvenile justice framework.

Chapter IV of the Juvenile Justice Act 2015, focusing on the "Procedure in Relation to Children in Conflict with Law," introduces a distinct procedure outlined in sections 10, 11, and 12. These sections specifically address the apprehension of a child alleged to be a CCL, the responsibilities of the individual in whose care the CCL is placed, and the provision for bail to an individual who appears to be a child alleged to be a CCL. Notably, there exists no provision for the detention of a CCL in police or judicial custody. Instead, the police or the Juvenile Justice Board (JJB) are required to place the child in an Observation Home or a place of safety governed by the government or a voluntary organization as stipulated under the Juvenile Justice Act.

The petition contended that “In the absence of foolproof guidelines, there is a lack of uniform approach manifested in divergent opinions of Hon‟ble High Courts on applicability of Section 438, CrPC to juvenile justice cases. It is apparent from the aforesaid provisions that the provisions of the Criminal Procedure Code are ordinarily applicable only where an offence under the Indian Penal Code or under any other penal law is being investigated, inquired into, tried or otherwise dealt with.”

Citing several decisions of various High Courts, the Petition also underlined the need for a settled principle of law on the issue of applicability of S.438 CrPC. For instance, the Gauhati High Court in Kara Taling Vs State of Arunachal Pradesh, 2022 SCC OnLine Gau 2234 held that S. 12 of the J J Act comprehensively addresses all circumstances concerning a child in conflict with the law, omitting any provision for arrest within the 2015 Act. Since the fundamental requirement for invoking jurisdiction under section 438 of the Criminal Procedure Code entails the fear of arrest, a petition under section 438, CrPC., filed by a minor or juvenile is deemed not admissible, given the absence of grounds for apprehension of arrest under the Juvenile Justice Act.

However contrary stands are seen to be taken in other High Courts, such as the decision in Mr. X (Prashob) vs The State of Kerala, 2018 SCC OnLine Ker 23373, wherein the Kerala High Court held the distinction between the term “arrest” and “apprehend” was diluted, where the court while upholding the application of anticipatory bail by a juvenile(CCL), mentioned that arrest, u/s 46(1), can only be made when there is an element of touch or confinement either by a police officer or any other person empowered under the Code. Usage of the term “apprehend” instead of “arrest” doesn't make any difference as the former also involves touching the person. Therefore, denying a juvenile to resort to section 438 of the Code doesn't seem to have a direct nexus with the principle of interpretation of statutes.

On the challenge to S.15 of the JJ Act, the petition submitted that the Chapter 4 of the NCPCR's guidelines, titled "Guidelines for conducting Preliminary Assessment under Section 15 of the Juvenile Justice Act 2015," dated April 2023, outlines the specifics of concluding the Preliminary Assessment. It includes instructions regarding the completion of the Final report of the Preliminary Assessment, transferring the trial, preparing the Special Investigation Report, Social Background Report, Individual Care Plan, and Witnesses Report. These reports are mandated to be submitted by the Child Welfare Police Officer (CWPO) in accordance with the provisions outlined in the Juvenile Justice Act.

However, none of these documents, despite being pivotal for proceedings (not trial, as the Juvenile Justice Act doesn't include trial procedures, including those related to Preliminary Assessment), meet the criteria for submission as evidence according to the Criminal Procedure Code of 1973 and the Evidence Act of 1872.

Further, it was stressed that as per Rule 10 A (4) of the JJ Model rules 2016 wherein the child is given the order copy under S.15, the child, being below 18 years and not legally recognized as an adult, lacks the legal capacity to sign a 'Vakaltnama,' engage a lawyer, or participate in any legal agreement. Consequently, they are unable to take independent action upon receiving this report.

“ In effect, the child is thus denied the opportunity to defend himself /herself denying the olive branch of law of natural justice and the rule of law procedure available to the adults, i.e., those above the age of 18 years.”

Moreover since the CCL in the age group of 16 to 18 years are treated differently from the other children under the juvenile justice regime under the JJ Act, 2015 without any reasonable basis, there occurs a blatant violation of the Fundamental Right to equality for juveniles or CCL above the age of 16 years.

The other as aspects which the petition covered included amendments of 2021 which assigned the District magistrate with additional powers to deal with child protection and adoption, thereby contending that such a change in law was devoid of considering the fact that the magistrate didnt have the same requisite skills as those engaged in the expert field of child protection.

Previously, the Supreme Court in a PIL seeking the simplification of adoption procedures in the country, directed the Secretary in charge of nodal departments responsible for the implementation of the JJ Act in all States to carry out bi-monthly identification drives to identify children who were orphaned, abandoned, or surrendered so that such children could enter the loop of adoption in India.

Case Details : PRAYAS JUVENILE AID CENTRE (JAC) SOCIETY vs. UNION OF INDIA W.P.(C) No. 001444 - / 2023

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