Nirbhaya Case Released For Trial Assignment

Putting the onus on lawmakers, the Supreme Court on Monday dismissed a plea by the Delhi Commission for Women against the release of the juvenile convict in the Nirbhaya gang-rape case. It observed: “We share your concern, but we cannot go beyond the law.”

“We cannot interpret the law [the Juvenile Justice Act] to curtail his [the juvenile convict’s] freedom without legislative sanction. We share your concern, but we cannot go beyond the statute,” observed Justice U.U. Lalit, one of the judges on the Bench led by Justice A.K. Goel.

When the government said that it supported DCW chairperson Swati Maliwal Jaihind’s plea that the convict not be released until he was reformed, Justice Goel said: “You are saying [this] without the law backing you...go first make the law.”

Are you for detention or rehabilitation, asks court

The Supreme Court, which dismissed a plea by the Delhi Commission for Women against the release of the juvenile convict in the Nirbhaya gang-rape case on Monday, posed the question whether the period of detention would have to be extended if the reformation takes more time.

“Suppose the reformation takes another seven or ten years. Do we have to extend the period of his detention every now and then without any legislative sanction,” Justice U.U. Lalit, one of the judges on the Bench led by Justice A.K. Goel, asked senior advocate Guru Krishnakumar and advocate Devadutt Kamat, appearing for DCW chairperson Swati Maliwal.

Mr. Krishnakumar quoted provisions in the Juvenile Justice Act and the Delhi Juvenile Justice Rules to argue for an independent committee to review the convict’s mental status and keep him under protective custody till he was reformed and was not a threat to society. “Are you for the rehabilitation of the child or for the detention of the child,” Justice Goel asked.

Mr. Krishnakumar quoted Rule 38 [after care organisation] of the Delhi Juvenile [Care and Protection] Justice Act, 2009, which allows for care and monitoring after release. “He need not be considered outside the realm of law on release. This provision can be used for two years till he attains the age of 21,” he said.

But the court said the provision was available only to convicts who had no place to go after their release. “Sorry Mr. Kumar, you don’t have a case here,” Justice Lalit said, concluding the hearing.

The much-publicised last-ditch attempt to prevent his release began on the eve of his release on Saturday night when DCW members knocked on the doors of the Supreme Court. The petition made the overnight journey from the residence of Chief Justice of India T.S. Thakur to the vacation Bench of Justices Goel and Lalit. The Bench decided to hear it on Monday as item number three on their cause list.

Meanwhile, the Delhi Police, acting on the fact that the convict’s release was not stayed by the Supreme Court, released him to an NGO on December 20. He is now being kept at an undisclosed location, reportedly near his village in U.P.

The contrasting stories of two individuals, who completed their terms at a juvenile home.


A juvenile convict’s journey to a healthy, productive life

"I would not have learnt the things I did there had I been out. I decided that I would live a good life."


Juvenile-molester a decade ago, a rapist today

Ten years later, the juvenile who is now 26 years old, has again been accused of sexually abusing a girl.


The punishment may not always equal the crime

"When we talk of juvenile justice, the position we take is that of reformative justice, not just of retributive justice, which means having the conviction that the child has the capacity to reform and to be rehabilitated. So any intervention should be to work towards reformation, rehabilitation, and reintegration into society."

Delhi Commission of Women Chairperson Swati Maliwal moved the Supreme Court past midnight in a last ditch effort to try and stall the release scheduled for Sunday. The vacation of the Supreme Court agreed to hear the petition but refused to stay the release of the Juvenile.

The DCW petition listed 10 grounds on why the juvenile cannot be released at this juncture and contended he was still a danger to the society.

“We met the Registrar. He said the Chief Justice has assured that it will be heard by a vacation bench of the court. We still don’t know about the timing of the hearing but  there will soon be  a hearing. We are now going to justice A K Goel’s residence. We are told that he is the vacation bench and the files have been sent to him”, Maliwal told mediapersons outside the Supreme Court

Earlier in the day, the juvenile had been released from the observation home and moved to a safe place on security grounds.

“DCW filing Special Leave Petition in SC tonight. Will go to Judge’s house, will try get hearing tonight against Nirbhaya convict’s release,” Maliwal had tweeted earlier.

The last time the apex court had opened at midnight was on July 30 to hear Mumbai blast death row convict Yakub Memon’s last minute mercy plea.

Questioning the High Court’s refusal to stay the release, Maliwal says in the petition that while the government and courts are bound by the provisions of the Juvenile Justice Act, it is necessary to assess the mental condition of the youth in the larger public interest before his release as he is viewed as a threat to society. “In light of the particularly heinous nature of the crime executed by this boy, the DCW requests your Hon’ble self to kindly intervene in the matter and ensure that the boy be kept in the observation home at least until his mental frame of mind and reformation is properly ascertained,” the DCW chief said in the petition

The petition said the juvenile, who still had no remorse could not be let free till an independent body ascertain his mental state given his criminal bent of mind.

Read the Petition here.

Topics: Advocate Rajesh Inamdar | Delhi Commission of Women | Juvenile Justice Act | Nirbhaya Case | Supreme Court of India | Swati Maliwal


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