By Dr Swati Jindal Garg
Recently, the Supreme Court, vide a three-judge bench comprising Justice KM Joseph, Justice Aniruddha Bose and Justice Hrishikesh Roy, directed that Narayan Chetanram Chaudhary be set free forthwith from the correctional home in which he was imprisoned after his arrest in 1994. Narayan has been on the death row for about 25 years now; he was arrested for murder and sent to Pune’s Yerawada jail.
The accused, who was a primary school dropout, not only taught himself Marathi and English while in jail, he also obtained an MA in Sociology during his incarceration. What came to his aid was a date from the admissions register of a school in Rajasthan’s Bikaner—Rajkiya Adarsh Uch Madhyamik Vidyalaya in Jalabsar—which showed that Chaudhary had dropped out of class III on May 15, 1989. It was based on this information that the Supreme Court held that Chaudhary was a juvenile while being sentenced to death in 1998 with two others for the murder of five members of a family, including a pregnant woman and two children, in a “rarest of rare” case.
Following the murders, Chaudhary was arrested in 1994 after which the trial court convicted and sentenced him to death in 1998. The High Court further affirmed the sentence and so did the apex court. Thereafter, a review petition was filed, which was also eventually dismissed. It was after this that an application under Section 9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, was moved, claiming that Chaudhary was a juvenile at the time of the commission of the offence.
In 2019, the Supreme Court directed the Principal District and Sessions Judge, Pune (inquiring judge) to decide the juvenility of the applicant and send a report. The Court observed: “The instant case reflects gross lethargic and negligent attitude of the State…. Keeping in view Section 9(2) of the Act, we have no other option but to refer the matter to the Principal District and Sessions Judge, Pune to decide the juvenility of the applicant.” The report that was received from the inquiring judge confirmed the juvenility of the applicant at the time of commission of the offence.
As per the chargesheet, Chaudhary was 20 years old at the time of commission of the offence. According to the certificate of date of birth issued on January 30, 2019, it is recorded that Chaudhary was born on February 1, 1982. Therefore, on the date of commission of the offence, he would have been 12 years 6 months old. However, the certificate was issued in the name of one “Niranaram”. There were also discrepancies in his age as reflected in various documents. The apex court dealt with these discrepancies in the name and age of the applicant.
The top court noted that in a letter written to the president of India seeking cancellation of death penalty on the issue of juvenility, he was referred to as “Niranaram”. However, in a letter addressed to the home department of Maharashtra government by the superintendent of Yerawada Central Jail dated January 19, 2007, the applicant has been described as “Narayan” and his date of birth has been given as February 1, 1982. The family card issued by Rajasthan government to the applicant’s father records his name as “Nirana” and his age as 12 years. A transfer certificate issued by the education department again records his name as “Niranaram” and his date of birth as February 1, 1982. The ration card issued to the father of the applicant records his son’s name as “Niranram”. In a writ petition filed by the applicant seeking quashing of the order of punishment imposed on him on the ground of juvenility, he has described himself as “Narayan@Niranaram, son of Chetanram Chaudhary”. Even the trial court order reflects his middle name as “Chetanram”, which is his father’s name. The Court noted that the applicant has been consistent in using his father’s name and also opined that the applicant’s original name was “Niranaram” and the onus to prove the same has been discharged by him and hence his plea cannot be rejected on the ground of being a belated claim.
On the question of the inquiry being flawed that was raised by the state, the Court held: “We find no flaw in the procedure which has been adopted by the Inquiring Judge. So far as the procedure for making an inquiry by the Court, in our opinion Section 9(2) of the 2015 Act does not prescribe scrupulously following trial procedure, as stipulated in the 1973 Code and the Indian Evidence Act, 1872.” The Court also observed: “Once the applicant has discharged his onus, in support of his claim of juvenility by producing the date of birth certificate from the school, the State had to come up with any compelling contradictory evidence to show that the recordal of his date of birth in the admission register was false.”
The apex court accepted the report of the inquiring judge and even went as far as to note that as it lacked knowledge of child psychology and criminology, it has refrained from speculating on whether a boy of 12 years could have committed such a gruesome act or not.
Traditionally, a person below the age of 18 is tried as a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2015. However, under certain circumstances, where the severity of the punishment, as prescribed under the Act, fails to justify the acts of the juvenile offender, the Act provides that the juvenile can be tried as an adult. Even though the primary motive of the Act is to ensure general care and protection of children while reforming and reintegrating them into the society, there was a huge hue and cry post the Nirbhaya case for more stringent punishment with respect to juveniles involved in serious crimes. Bowing to the pressure, the legislature amended the Act to adequately address the crimes committed by juvenile offenders wherein it was thought that a case pertaining to juvenile offenders cannot merely be decided on the basis of the age of the juvenile, but it should also take into consideration the criminal offense committed by the juvenile. The amendment introduced the concept of heinous crimes and the procedure for trying juveniles caught doing heinous crimes as an adult.
The offenders under the Act are referred to remand homes and upon their release, their criminal records are deleted in order to ensure their proper rehabilitation into the society. It was, however, observed that in some cases it was difficult to conceive that the juvenile offender was not aware of the consequences of his action for offences like murder, rape, etc. After the 2012 Nirbhaya case, public outcry to punish the juvenile involved led to a change in the Act as it was felt that the Act adopted a lighter touch for people below the age of 18, even though the crime committed was punishable severely under the Indian Penal Code (IPC), and hence to address this lacuna, the Act introduced the concept of three categories of offences:
(1) Petty offences: These include offences for which the maximum punishment under the IPC or any other law for the time being in force is imprisonment up to three years;
(2) Serious offences: These include offences for which the punishment under the IPC or any other law for the time being in force is imprisonment between three and seven years;
(3) Heinous offences: These include offences for which the minimum punishment under the IPC or any other law for the time being in force is imprisonment for seven years or more.
After the amendment, the Act now states that a juvenile offender between the age of 16 and 18 can be tried as an adult for committing a heinous offence or for any of the offences under any other Act in force, wherein the minimum punishment is seven years or more. Further, the juvenile shall be tried as an adult only after a Juvenile Justice Board (with the assistance of psychologists or psycho-social workers or other experts) has assessed the juvenile offender on the following:
(1) The capability of the juvenile to commit such a murder (mens rea and physical capacity);
(2) His ability to comprehend the consequences of the offence committed;
(3) The circumstances in which the offence was committed.
The said assessment has to be completed within a period of three months from the date of the child being produced before the Board.
While there is no specific data available on how many children between 16 and 18 have been tried as adults in India, the National Crime Records Bureau (NCRB) reports show that a large number of juveniles apprehended for crimes are between 16 and 18 years old. The NCRB report of 2020 shows that 76.2% of the juveniles in conflict with the law (26,954 out of 35,352) arrested during 2020 were between the ages of 16 and 18. In 2019, the percentage was 74%.
There have, however, been various cases where the courts have come down heavily on Juvenile Justice Boards for their assessment of a juvenile as an adult. The Rajasthan High Court in a 2019 verdict in the case of a 17-year-old girl, who killed her husband after repeated physical and sexual abuse, rapped the Juvenile Justice Board for the “absolutely mechanical and laconic manner” of passing an order allowing the girl to be tried as an adult. “No account had been taken of the circumstances in which the child was driven to commit the offence,” the High Court observed.
In another case from Jhabua in Madhya Pradesh, 16 and 17-year-olds were tried as adults and sentenced to life imprisonment without reference to the fact that they were drug addicts and the murder was committed while under the influence of drugs. The High Court reversed the verdict and noted that social and medical factors were “not taken into account.”
The Delhi High Court in a 2016 verdict directed the Juvenile Justice Board to re-examine a case wherein it was found that the assessment report of a 17-year-old was based on “inappropriate tests, which were actually meant for children between the age group of 5 and 15 years.”
One of the biggest problems with the system is the lack of training of Juvenile Justice Board members and experts. The intent of the law was to get a wide range of experts, but there are very few actual experts working with the juvenile justice system in India. Instead of applying judicial mind to the report, reports by experts are being accepted at face value which is the root of the problem.
The proactive steps being taken by the courts will hopefully pave the way to a better and more guarded system. While the intent behind the amendment to the Juvenile Justice Act was correct, its application needs a lot of work, and the entire system needs to be pulled up from the grassroots level in order to apply the amended law in its true letter and spirit.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi