A woman advocate has filed a Public Interest Litigation in the Delhi high court for its direction to declare as 'ultra vires' some provisions of the Juvenile Justice Act saying that the recent incidents show it is the society which 'needs care and protection', instead of the offenders above the 16 years of age.
The petition, filed by a Supreme Court lawyer, Shweta Kapoor, would be heard on Wednesday by a bench of Chief Justice D Murugesan and Justice V K Jain.
"Issue an appropriate writ ...or 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 ultravires to the Constitution..," said the PIL filed by Kapoor.
The recent incidents show that the juveniles, who have attained the age of 16 years, are involved in serious crimes and are 'quite well developed and they do not need the care and protection of the society, rather the society needs the care and protection against them," it said.
Section 16 of the Act deals with the order which cannot be passed against juvenile including that they cannot be 'sentenced to death or life imprisonment'.
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.
However, another provision says that a juvenile can only be kept at the special home till he attains 18 years of age. "In other words section 16 envisages a different class of juveniles who have committed an offence of serious nature and cannot be kept in special homes. Therefore subsection 1 of section 16 (1st part) of the Act is ultravires...," it said.
The PIL assumes significance in the backdrop of the December 16 gang-rape and murder of a 23-years old girl here in which the probe indicated that the minor, 17, was allegedly the 'most brutal' among the six accused.
The minor accused in the December 16 gang-rape case was 17-and-half-year old at the time of incident and would come out of the special home, if convicted, after attaining majority.
He can neither be kept with minor convicts at the special home nor be sent to jail with major convicts.
"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," the PIL 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," it said.
The petition also seeks a direction for amendment to the Act to provide for harsher punishment to rape convicts.