FAROOQ KHAN vs STATE & ANR

In this writ petition, which has been filed pro-bono-publico, the petitioner inter alia has challenged the validity of the provisions of Section 2(m), 2(n)

and Section 21 of the Jammu and Kashmir Juvenile Justice (Care & Protection of Children) Act, 2013, as ultra-vires and on the ground that the same

is violative of Articles 14 and 21 of the Constitution of India. The petitioner has also sought a writ of mandamus directing the respondents to reduce

the age of juvenility to 16 years. Background facts leading to the filing of the writ petition need mention which are stated infra.

The petitioner has served the J&K Police Organization for 34 years and has minutely analyzed and study the ideology of criminals of tender age.

After enactment of the Jammu and Kashmir Juvenile Justice (Care & Protection of Children) Act, 2013, the petitioner noticed that some of the

provisions of the aforesaid Act were aimed at diluting the basic spirit and architecture of the Constitution of India. According to the case, pleaded by

the petitioner in the writ petition, the age of juvenility in the Act has been provided as 18 years.

The learned senior counsel for the petitioner has referred to the provisions of Section 2(m), 2(n) and Section 21 of the Jammu and Kashmir Juvenile

Justice (Care & Protection of Children) Act, which read as under:-

2.(m)Â Â ""Juvenile"" or ""child"" means a person who has not completed eighteenth year of age;

2.(n) ""Juvenile in conflict with law"" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as

on the date of commission of such offence;

21.  Special provision in respect of pending cases.â€" Notwithstanding anything contained in the Act, all proceedings in respect of a juvenile

pending in any court in any area on the date on which the Act comes into force in that area, shall be continued in that court as if the Act had not been

passed and if the court finds that the juvenile has committed any offence, it shall record such finding and instead of passing any sentence in respect of

the juvenile, forward the juvenile to the Board which shall pass order in respect of the juvenile in accordance with the provisions of the Act as if it had

been satisfied on inquiry under the Act that a juvenile has committed the offence. Provided that the Board may, for. an adequate and special reason to

be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation: In all pending case including trial,

revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a

juvenile shall be in terms of clause (n) of section 2, even if the juvenile ceases to be so on or before the date of commencement of the Act and the

provisions had been in force, for all purposes and at all material time when the alleged offence was committed.

In the writ petition, it is averred that the aforesaid legislation, which has been brought out by the State Government has put the society in a very

precarious situation and it is not discernible that a person of the age of 16 years does not have the complete knowledge about the crime and he/she

attains the knowledge of crime only after attaining the age of 18 years. The petitioner has also pleaded that no scientific study has been conducted by

the respondents to know about the ability of the persons to distinguish the crime and its impact on the society at a particular age and the new

legislation has been promulgated in a mechanical manner.Â

It has also been pleaded that the protection, which has been given from the culpability to the criminals aged between 16 to 18 years, is violative of

the rights of society and the citizens guaranteed under Article 21 of the Constitution of India. It is also stated that in the State of Jammu and Kashmir

where the rate of literacy is very less and there is no social set up built by the respondents to educate the children and to inculcate the principles in

them of co-existence and honouring the rights of the society and for living as good citizens. It is catastrophic for the State to have indulged into an

exercise of changing the law. In the aforesaid factual background, the petitioner has approached this Court.Â

Mr. Sethi, learned senior counsel for the petitioner, submitted that after ‘Nirbhaya incident’, the Central Government has amended the

Juvenile Justice (Care and Protection of the Children) Act in the year 2016, by which the age of the Juvenile has been brought down from 18 years to

16 years in case of heinous offences. However, no similar provision has been made in the State Act, as a result of which, there is a threat to the

society which is violative of Article 21 of the Constitution of India. It is further submitted that even for the class of criminals, who are less than 16

years of age but more than 14 years of age, general amnesty is not possible, as that will be running in conflict with the rights of the citizens guaranteed

under Article 21 of the Constitution of India to live peaceful life in that category also. It is further submitted that juvenility has to be restricted to a

particular class of cases only and even one of the major contributions will be the age of victim as well. However, it is fairly stated by learned Senior

counsel for the petitioner that this Court cannot issue any mandamus to the legislature to a particular manner, but a direction can be issued to the

respondents to consider the desirability of amendment in the provisions of the Act, as suggested in the petition.Â

On the other hand, Mr. Siddiqui, learned Senior Additional Advocate General for the respondents, fairly submitted that the State Government shall

consider the issue in its right perspective taking into account the prevalent conditions in the society and shall deliberate upon the desirability of

amendment in the provisions of the Act and may take note of the averments made in the writ petition as well as the Central Legislation, namely,

Juvenile Justice (Care & Protection of Children) Act, 2016.Â

We have considered the submissions made by the learned counsel for the parties. It is trite law that the Court cannot compel the Government to do

that, which, according to the mandate of the Parliament, lies in its discretion to do, when it considers it opportune to do it. In this connection,

reference may be made to the decision of the Supreme Court in the case of ‘A. K. Roy Etc vs. Union of India & anr.’, [1982 (2) SCR 272].

The aforesaid judgment of the Constitution Bench of the Supreme Court has taken note of the decision by the Supreme Court in the case of

‘Aeltemesh Rein, Advocate vs Union Of India & Ors.’, [AIR 1988 SC 1768], wherein a similar view was reiterated and it was held that the

Court cannot issue a writ in the nature of mandamus, directing the Government to bring a particular enactment into force. However, it was further

held that in case, it is not clear as to whether the Government has applied its mind at all to the question whether a particular provision should be

brought into the Act or not. In such a case, the State Government can be directed to consider the issue of amending the provisions of an Act within

some reasonable time.Â

The Parliament amended the Juvenile Justice (Care and Protection of Children) Act, 2015, to make comprehensive provisions for children alleged

and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on

the Rights of the Child, the United Nations Standard Minimum Rules for Administration of Juvenile Justice Act, 1985, the United Nations Rules for

Protection of Juveniles deprived of their liberty, the Hague Convention on Protection of Children and Cooperation in respect of Inter-country adoption

and other related international instruments. By way of an amendment in the Central Act, the age of Juvenile has been brought down from 18 years to

16 years in case of heinous offences. The Parliament has taken into account that there is a spike in juvenile crimes as depicted by National Crimes

Record Bureau Data. The Central Act further provides that Children between 16 to 18 years of age be tried as adults for heinous crimes. However, in

the State of Jammu and Kashmir, it appears that the State Legislature has not carried out any such exercise. Therefore, on the analogy of the

aforesaid principles of law laid down by the Constitution Bench of the Supreme Court as well as in the case of ‘Aeltemesh Rein (Supra)’, we

are inclined to dispose of the writ petition with the direction to the State Government to consider the issue of amending the provisions of Section 2(m),

2(n) and Section 21 of the Jammu and Kashmir Juvenile Justice (Care & Protection of Children) Act, 2013, in so far as it pertains to the reduction of

age of Juvenile from 18 years to 16 years in the light of the averments made in the writ petition as well as in the context of prevalent conditions in the

society as also the other relevant factors and the provisions of Juvenile Justice (Care & Protection of Children) Act, 2016, within a period of three

months from the date of receipt of a certified copy of the order passed today.

With the aforesaid directions, the writ petition (PIL) is disposed of.